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.
SCENARIO 2
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.
SCENARIO 3
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.
SUMMARY
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
Lawyer
Quinn Thiele Mineault Grodzki LLP
Ottawa, Ontario, Canada
Thanks for the post. very informative, alas, confusing, then again I am not a lawyer. I do, however, have a question. I have moved into a psudo- rooming house, in Toronto. New townhouse development, 4 bedrooms, I am the 5th tenant, occupying the ground floor living room, as my room, no signed lease agreement. I have a few questions. Am I protected by the residential tenancies act; there is laundry facilities on premises, may I use them, eventhough I was told there are outside laundry facilities available. Neither myself or my room-mates, are or were expressly forbidden from their use; plus the original gas stove was replaced with a twenty year old ghetto stove. The Landlord citing, the gas stove, as a potential safety issue. which you and I know should suppose is a fallacy. they're just stingy. the new stove is far more unsafe. My father was obe of the last Q.C's in the province. if you can help with any advice it would be much appreciated, also a Phi Delta Phi past president. my email is james.pirie196926@gmail.com
ReplyDeletethanks in advance.
Hi James: Rooming houses are indeed covered by the Residential Tenancies Act. This has not always been the case in Ontario but for many years now boarders in rooming houses enjoy the benefits of the RTA---which basically translates to the security of tenure provisions applicable to he traditionally typical tenancies. That being said, a rooming house--whether official or pseudo--while covered by the RTA--can some instances be exempted from the application of the RTA if certain exemptions apply. These are the same exemptions that could apply to "regular" tenancies. What might these be? A common exemption is when the landlord also lives in the building and the tenants are required to share a kitchen and or bath with the landlord. There are many other exemptions set out in the RTA (see section 5 for example). The exemptions are fairly specific as the goal is to have the RTA apply to as many kinds of tenancies as possible. Hence the exemptions fit narrow categories. Without interviewing you I can't know whether any other exemptions might fit, but on its face and presuming that you don't live with the landlord or his family my presumption is that you are covered be the RTA. The fact that your rooming house may be unofficial does not impact on your RTA rights.
DeleteMichael K E Thiele
Thanks so much for taking the time to address my post
DeleteHi Michael,
ReplyDeleteI am in the process of trying to kick out a roommate and I believe I fall into scenario 2.
I am the sole tenant of a 4 bedroom town house. Only my name is on the lease and anybody that rents a room pays their rent to me.
This particular roommate has caused damage (spray painting the kitchen at 4am), is constantly loud after 2am, constantly late on paying for rent and bills and has so many personal belongings that they have overflowed into the common areas making some areas unusable and making it hard to walk down the hallways.
On February 12th I asked to her to move out by April 12th. She agreed. Then over the next couple weeks she started refusing to move out. Then she agreed to move out April 6th, which we all agreed to and would even help her move her stuff.
Friday night she sends me a letter saying because I have not given her notice in writing, she does not have to begin her two months until I give her this letter.
Her and I signed an agreement when she first moved in (December) saying she was renting this room at this address, at this price and that she needed 60 days notice in writing. Does that agreement stand?
Everything I've read so far, has basically pointed to her not having rights under the RTA and that the cops are the only solution. However in your response to James you mention even though he is not on the house lease, he is still covered by the RTA.
A couple officers that I've talked to have both said it sounds like she’s trespassing while another officer I talked to this morning said I need to figure it out myself and the cops won't come do anything until their is a court ordered eviction.
These quotes from your article seem to be in my favor:
“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."
and
"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."
Is she indeed covered by the RTA? What can I do to remove her from the house? Is it a bad move to just change the locks?
Thank you for everything you do on this blog!
- Stu
Stu:
DeleteThe unfortunate thing about law is that it is more of an Art than a Science. It is rare that there is an absolutely right answer for any particular situation. Often this is because of the perception of the factual underpinnings of any particular situation. What this basically means is that you can't know for certain until "your" Judge has spoken.
So, that being said, you face a real problem in getting rid of this roommate. There is no easy or quick way to get a Court Order and in fact applying to the Superior Court of Justice for a Writ of Possession may be so impractical that you will not consider it a realistic option. Often enough, you can get police to enforce eviction but that is not a guarantee. Whether the police will remove a roommate is dependent on the legal views of the individual officer. My personal view is that the police must assist you in removing the roommate as the roommate becomes a trespasser once you ask her to leave notwithstanding any contract. However, as you are discovering, there are officers with different views.
With respect to your written agreement--is it binding? The short answer is that the agreement informs the contractual terms of the relationship with the roommate These are not the only terms, but they are some of them. Whether you have agreed to other terms, amended the agreement is also possible. Do you think you've complied with the terms of your agreement? Do you believe sufficient notice has been given to discharge your obligations? Implied in any contract like this is also that the roommate behaves appropriately as a condition of remaining in the room. Certainly she can't expect to stay if she didn't. Has she paid for the damage that she caused? If you act in a way contrary to the terms of your contract with her the likely remedy is damages and not an order putting her back in possession.
I stand by my comments that you quote and I do believe they are correct. That being said, your roommate could always sue you and if she is a better story teller than you--or your behaviour in evicting her is deemed unreasonable to your particular judge he may be inclined to award damages against you (while other judges might not). This is the unsettling aspect of law--there are no guarantees.
To your last question then, can you just change the locks? Any action like that will always expose you to risk of being sued and being seen as the unreasonable person. However, if the facts support reasonable notice and fair warning under the circumstances, then certainly you can go ahead and change the locks. It may lead to litigation--but if the facts support you, you will win the case. To avoid the situation being very unsettling, consider what things are in her room (medications, personal items). If you can pack the room for her then do so, but video the whole thing first. Document, document, document, and get police supervision if she comes back and makes a scene. You will need to stand firm with the officer if they try to put her back in possession--which makes having packed the room a good move. Unless you think she will occupy the room and simply not leave the building--consider warning her that you will pack up her room and evict her and her stuff.
Best of luck.
Michael K. E. Thiele
Hello, I was just wondering, I was told that it is against the law to putt a deposit on a room, is this true?
ReplyDeletealso if you pay first and last and the landlord asks for last months pay before moving ( I am moving in may 1st and paying the 450$ for that month on may 1st but he wants me to pay lasts months rent right now-April 15) am I allowed to get my money back if I no longer wish to move in, or by law can he keep my money(last months pay/deposit)?
Hi Julie: The circumstances you are describing are actually fairly tricky. In short, the landlord is permitted to collect a last month's rent deposit now before the commencement of the tenancy. In fact, it is difficult and perhaps impossible for a landlord to collect a last month's rent deposit after the tenancy commences. The tricky part arises when you don't enter into occupation of the unit and try to back out of the lease. A landlord may not charge a penalty or anything similar to that for cancelling the lease. Penalties are against the law. So he may not simply keep your Last Months Rent as a forfeited deposit. However, your landlord may be able to keep the deposit if he considers you committed to a proper lease and he goes through the process of charging you rent for the unit etc.. The paperwork will be key to this and how the landlord proceeds will make all the difference. The case law is tricky and it really turns on how the landlord approaches the issue of you not proceeding with the tenancy.
DeleteMichael K. E. Thiele
Hi there, My roommate left left over a year ago. I had signed a lease with him that also ended last June after ha had left. My landlord is now requesting a notice of vacancy from the both of us. I have No contact with my former roommate and I was told that since he has been gone so long it considered as him abandoning the apartment... Anychance you would know anything g about this? Thank you
ReplyDeleteHi Victoria: From your comment I presume that you are the only tenant and your roommate was only a roommate and not a tenant on the lease. If this is the case then there can be no argument that your roommate is required to sign anything. If you want to terminate the tenancy, and you are on a month to month tenancy, then you must provide 60 days Notice with the end date being the last day of the term. Go on the Landlord and Tenant Board website and download the N9 Form and use it to give Notice of Termination (if you are intending to terminate and leave).
DeleteIf you and your roommate were both tenants then the landlord's request for a jointly signed Notice of Termination is understandable in the context of the law in Ontario on this point. It is not entirely clear whether a tenancy with two tenants can be terminated with the signature of one tenant. My opinion is that it can be--but there are some who dispute the point. In your situation, presuming again that you are seeking to terminate the lease (month to month now), fill out the same N9 (Tenant's Notice to Terminate) and sign it providing the landlord with the legal notice required. Provide the landlord with a cover letter advising that the co-tenant is no longer living in the property, that you have no contact details, and that your notice of termination will have to suffice. Save a copy of the N9 as well as the letter to the landlord. If you can, scan and email it to the landlord or fax it, or send it in a way that you can prove delivery.
Hope that helps
Michael K. E. Thiele
HI Michael,
DeleteI was wondering if you could offer some advice on the following situation:
My housemate and I signed a lease together (month-to-month June 2018) with the landlord. My housemate (co-tenant) is moving out of my place (provided written notice to the landlord with 2.5 months notice). At that time, I wrote to my landlord to tell him that I would like to continue rent and find a new housemate.
He said that he will be increasing the rent for the new tenant (by almost $300 a month) and he said that he will allow me to keep my rent the same.. Though he will state the new rental amount as a sum on the new lease, that I would be signing with the new co-tenant.
FYI, he has increased the rent in Jan 2020 by 1.5%, and I know that raising the rent is permitted every 12 months.
Do I need to sign a new lease or can I ask to continue to rent it solo with the current rental price?
Or am I now considered free of the lease because my housemate terminated the lease and if I want to stay on, I must sign a new lease agreement?
Thanks so much
Hi: I think it is clear from your comment that there is only one lease for your apartment and not multiple leases (i.e. rooming house). When your co-tenant/roommate leaves you have a few options. You could seek to terminate the lease and also vacate. You could terminate the lease and see if the landlord would enter into a new lease (which is actually a weird thing to do). Alternatively, you could just stay in the unit and continue on--especially if your co-tenant/roommate doesn't mind. Your co-tenant might want the lease terminated or her name removed from the lease to guarantee that her liability ends (for rent and damage). Unless the tenancy is actually terminated or her name removed (released) from the lease she remains liable for rent and damage even after she moves out. Your co-tenant might be comfortable and trusting of you and perhaps is fine to just leave with an agreement from you that you alone are responsible for rent and any damage that happens after a certain date. If you are a good credit risk, this might be an acceptable outcome for your co-tenant. This means that your co-tenant, if she gets sued by your landlord at some time in the future for rent arrears or damage that you caused after she moved out then she could sue you and be indemnified by you.
DeletePresuming your co-tenant is fine with you continuing then you simply continue in the existing tenancy. You don't sign a new lease. You bring in whoever you want as a "roommate" not as a co-tenant. The landlord has no say over this and you simply continue on as the solo tenant.
Michael K. E. Thiele
www.ottawalawyers.com
Hi, I am co-tenant with a roommate who is moving out and my landlord says I have to sign a new rental agreement in order to continue living there. The new agreement includes a $140 rent increase and a security deposit. Is this legal in ontario?
ReplyDeleteHi Brock: While your question sounds simple and straightforward there is more to it than you might think. When you say "co-tenant" with a roommate---can I presume that the roommate that is moving out was your co-tenant? If so, did your roommate deliver a notice of termination to the landlord---i.e. did the roommate seek to terminate your joint tenancy? Or has your roommate just decided to move out and has told the landlord that he is moving out without actually serving a Notice of Termination?
DeleteThe reason for these questions is to get to the main issue about whether your tenancy has been terminated or not. If your tenancy has been terminated then your landlord has the right to require you to vacate the premises. If the landlord has this right then the landlord also has the right to enter into a new tenancy agreement with another person in relation to the rental property--including you. The new tenancy agreement may increase the rent to any amount and the landlord may also require a security deposit. Alternatively, you could take the position that the lease with the landlord has not expired/terminated on the moving out of your roommate---this is easily argued if you are still within a fixed term lease. However, if you are on a month to month tenancy, the argument becomes a little more difficult--but certainly it is significant to note that many lawyers and some academics/authors assert that your tenancy does still continue notwithstanding your roommate moving out. If the tenancy did not terminate then the rent increase MIGHT not be legal. Certainly the demand for a security deposit is not proper (if the tenancy continues) and the requirement to sign a new lease is not proper either. If the tenancy continues, the landlord may raise the rent by $140 per month if the rental unit is exempt from the rent control provisions. Whether or not the unit is exempt largely turns on the age of the rental unit---i.e. is it new (newish)? The landlord, in order to raise the rent in a continuing tenancy, must serve a Form N1 (Notice of Rent Increase)---from that form you would get a sense of whether the landlord asserts that your unit is exempt.
Your landlord is clear taking the position that the tenancy agreement has ended, that he may require you to vacate, but is agreeable to renting to you alone on the condition that you sign a new lease and pay an increased rent and security deposit (presumably Last Months Rent deposit). I wish I could tell you that there is a definitive answer to your question. At this point, I don't believe that there is--though there are strongly held views in the respective landlord and tenant camps. The "Tenant" biased side argues that the lease continues because it would be unfair to allow one tenant to impose termination on another tenant (often the background circumstance is a spouse leaving the home). The Landlord side argue against this position arguing that the remaining tenant should not be allowed to become the "sole" tenant and the leaving tenant get off the lease as this gives the landlord less security for the performance of the obligations under the lease. As a result, Landlords want the situation to be that either "both" remain on the lease or "both" have to leave. Tenant advocates want the right for one tenant to leave (and be removed from the lease) and the other tenant to remain on the lease. From the landlord perspective there is a further risk in such situations with a unit never becoming vacant and the benefits of being able to adjust the rent between tenancies is denied to the landlord. If a remaining tenant, finds a new roommate, who then pays rent--it becomes an argument about whether the new roommate has become a de facto legal tenant---if so, then the old tenant could leave with the new roommate becoming the sole new tenant---effectively a transfer of the tenancy. In situations where the rent is cheap there will be tenants who will try to effect such transfers.
In the end, your simple question does not have a simple answer. It would be great if someone in your situation would agree to put the issue squarely before the Board. I've had the opportunity to ask the Board this question once but the issue was side-stepped in the reasons and hence no answer. At some point, someone will ask the Board to rule on this--and someone will appeal the question to the Divisional Court and we will have some binding authority--and a definitive answer. But until then it is a bit of guesswork.
DeleteMy opinion, by the way, on what the law should be (and what I think the old pre-RTA case law supports), is that during a fixed term tenancy neither tenant may terminate the lease unilaterally. This means that both tenants are responsible for the burden of the lease during the fixed term--neither may terminate, assign, or sublet during the fixed term. After the fixed term (once on a month to month), I think that either tenant may unilaterally terminate the lease thereby requiring both tenants to vacate the unit---unless of course the tenant who wishes to remain negotiates a new tenancy agreement with the landlord.
Please let me know how it goes especially if you put the issue before the Landlord and Tenant Board.
Michael K. E. Thiele
Hi, first i gotta say thank you very much! I moved In with a girl that was already living there, but signed a rental agreement which stated I am a co-tennant, and I pay rent directly to the rental agency. The term is monthly. When I talked to the landlord he says that I am considered a roommate and will have to sign a new agreement. I think I'm going to bring it to the board
DeleteHi Michael,
DeleteI don't know if you are still following this thread, but I am in a similar situation as the above poster and I am wondering if you are aware of any significant developments at the LTB that would change the answer you gave back in 2014.
I am in a month to month joint tenancy with a good friend. We originally both signed a fixed-term lease (one year - Sept 1 - Aug 31) back in 2015, and had re-signed that lease every year up until this past September when we let the lease expire and transitioned on a month to month basis. In November, I plan on moving out of the unit and we arranged for a mutual friend to replace me. My current co-tenant wishes to continue his tenancy and would obviously prefer that the lease remains in effect (i.e. no rental increase).
On August 30, I asked my landlord to consent to an assignment of my tenancy to the mutual friend that we had arranged to move in. They indicated that they were informed by the LTB that it is impermissible to assign a portion of a joint tenancy, and that if we wished to move forward with an assignment, both myself and my current roommate would have to vacate the unit. Having read your other replies in this thread, I know that this is a complicated issue. However, I didn't want to engage in a protracted argument with my landlord on this point. So, I suggested that alternatively, I would move out of the unit, with my current co-tenant taking over as the sole lease holder and our mutual friend moving in as a 'roommate'.
My landlord agreed to this proposal, but I want to make sure that I can properly terminate my interest in the tenancy, while still ensuring that my current co-tenant can continue on the lease without needing to sign a new agreement and thereby exposing him to a rent increase. I was thinking of asking my landlord to sign a Form N11, but now I am concerned that this would terminate the lease altogether. What is the best course of action?
Thank you.
Hi: The lack of guidance with respect to the kind of living arrangement you describe remains the case. There is no way for you to terminate your obligation while maintaining your roommates rights as a tenant. The reason is because there is only a single tenancy agreement. You and your roommate control one tenancy and hence you can't divide it up. When you asked your landlord to assign your interest in the lease that was asking for something that technically isn't possible in the strict sense of the word "assignment". However, in the colloquial sense you are absolutely correct to ask to assign---because what you actually mean is "replace". You want your landlord to replace or substitute your name on the lease with the new person you have identified. With the consent of your roommate and the agreement of the landlord there is no impediment to doing this on consent.
DeleteHowever, and there is always an "however", the reason your roommate wants to maintain the lease is the same reason why the landlord wouldn't mind a new lease (i.e. the fair market rent is likely higher than what you're paying). So, getting this done is potentially difficult because there are diverging interests---another example being, your roommate wants the current lease to continue and you want to end so that your liability terminates. Another, option (much less attractive to your roommate) is that you both go to the landlord, advise that you'd like to sign a new lease between landlord and roommate and new tenant and terminate the old lease--presumably the landlord would take advantage to raise the rent a little (or a lot).
Ultimately, and what typically happens is that you will move out and your roommate is left behind now managing the whole lease. The old roommate (co-tenant), gets a new roommate who is not technically a tenant. So long as the rent is paid and the place isn't trashed, you will likely not be pursued for anything in the future. However, you do still technically remain on the lease and have at least a theoretical liability for anything bad that does happen after you move. How big a deal this is depends on the credit worthiness of your co-tenant as you could always sue him/her if you get sued by the landlord.
Lastly, if there weren't too many options already, you could decide to move and serve an N9 (Notice of Termination). Doing so will muddy the waters and many will view this move as confusing and "unclear" in law. In my view, serving the N9 will terminate the tenancy even without your roommate's consent. Then, after the effective date of the N9 your roommate becomes (again in my opinion) an overloading tenant and under the RTA an unauthorized occupant. The landlord then needs to file an application to terminate and evict within 60 days of your roommate becoming overloading failing which the RTA will deem the lease assigned to him (and if he has a roommate to the roommate as well). As far as I know, no one does this and I haven't seen this play out. But I think it makes sense based on the RTA and the various sections dealing with termination, unauthorized occupancy and assignment. Of course, this last option might not be considered a friendly move towards your current co-tenant. In my view, serving the N9 creates liability for you during the 60 day application window that the RTA gives your landlord--however, once the lease is deemed assigned (or terminated by the landlord's application to the LTB), your liability ends.
Good luck with all of this.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you for your quick and detailed reply, Michael. Ultimately, I don't have any real concern that my co-tenant and his future roommate will do anything improper, so I truly don't mind maintaining technical liability on the lease. That being said, my landlord may consent if I phrase the "assignment" as a "replacement", like you suggested, which is what I would be most comfortable with. Thank you again!
DeleteHi,
ReplyDeleteI am a university student who signed a joint lease with 9 other people (crazy i know). One person failed to move into the house and him and the landlord/property manager agreed to sublet to another person we did not know and didn't inform us until after. I read on this website http://www.ltb.gov.on.ca/en/Law/STDPROD_092361.html that if the landlord and one of the cosigners agrees to sublet that the joint lease becomes a lease in common and each individual is now responsible for their own rent. The one person has failed to pay a good chunk of their rent as the subletter bailed halfway through the lease. The property manager is also trying to claim that the original person is not responsible because they didn't move anything in to the house, he also collected security deposits (besides first and last) from each of us, which you seem to say is illegal. My main question is simply if we are still responsible for that individuals rent?
Thank you
Hi: Given the facts as you state them, it sounds like your one joint lease is not actually a joint lease. The landlord's behaviour in feeling free to rent out individual rooms--or subletting rooms with one of the persons on the lease--ignores the legal nature of the single lease. On these facts, it seems to me that the landlord is treating (at least this one room) as a separate lease. I'm not sure that I would even categorize this as a tenancy in common. The landlord's refusal to recognize the original tenant's (one of 9) obligation--is terribly odd. On this logic the only person responsible for anything is the person who moved into the room who did not pay anything. That person isn't a sub-tenant if the original tenant owes nothing (according to the landlord) and in fact the sub-tenant was in fact the only tenant. The landlord seeking to visit these rent arrears on you (remaining 8 people) at this stage seems to be a very far stretch. I don't see a realistic a claim against you for the arrears referable to this part of the tenancy. If the landlord intends to pursue this I'd recommend getting a legal opinion--which would necessarily involve a review of the lease that you all signed, a copy of any of the advertising, and correspondence that lead to the "sub-let".
DeleteMichael K. E. Thiele
As of yesterday he is no longer seeking any legal action against us, and I am moved out and hopefully can now put this all behind me. Thank you for the advice as I felt fairly confident that he didn't have much to go on and I think he knew it. I appreciate the advice all the same.
DeleteHi Michael,
ReplyDeleteFirst, I want to say great post and thanks for taking the time to do this. You have no idea how reading this made me feel less anxious. I had a quick question for you.
I am in a position where I signed the lease in a 2 bedroom apartment but my roommate is making quite a bit of noise during the weekends and weekdays. I have tried talking to her in a reasonable manner but I cannot seem to find a happy medium with her. We are 2 months away from the contract ending but I feel I cannot sleep anymore so I am becoming very unhappy. I wanted to ask her to leave because I believe, from the above, I am entitled to do so. However, my one concern is that at the beginning of the lease we both paid for the first and last month and because she paid for the last month I would not be able to ask her to leave legally. Could I give her money back to her for the last month? Do I have other options?
Thanks in advance for your help! here are some quick notes that might be useful.
- We are both students
- She is an international and I am a Canadian Citizen
- She doesn't always give me her rent on time
Hi Daniel: If you are the sole tenant on the lease then you are entitled to ask her to leave at any time. Her paying the rent or the last month's rent goes to the question of whether or not she is a tenant within the rental unit. Does the landlord recognize her as a tenant---have you recognized her as a tenant? If not and you are certain that she has no legal rights as a tenant then you can insist that she leaves--either immediately or on notice. Certainly you may pay her back the money she has paid. The key to it all is to be reasonable and not put her in a position where she incurs significant expenses because of being thrown on the street on short notice. She has rights in contract with you---and absent any written contract--the generally thrust of the law is one of reasonableness. Of course what is reasonable depends on context---a bit of noise or a dirty dish does not warrant eviction at 3:00 a.m. without notice--while discovering that she is dealing drugs from the unit does warrant immediate eviction, even at 3:00 a.m.. Context is everything.
DeleteMichael K. E. Thiele
Hey Michael
DeleteThank you for your prompt response. I completely agree with your analysis of context. In this case, I do believe my request is merited because I have done my best to mitigate her moving out..to no avail. In either case she agreed to leave last Saturday by July 1st, but today she said she wanted her money now before she moved out. I was thinking she needs it for her rent for her new home, so I am thinking of offering her half now and half when she leaves.
Do you think this is reasonable? I also believe that if she does want all her money I could give it to her on the basis that she leaves sooner. I just do not want to give her the money so soon because I have no assurance she will leave by the end of the month.
I apologize for all the details, but I want to provide as much as possible for anyone else who comes here looking for advice. You have been a great help and thanks for everything!
Hi Daniel: "Don't count your chickens before they hatch" comes to mind and I think you sense it as well. Returning money to her now in no way guarantees that she leaves. You might end up with her still in your apartment without money. It is reasonable to offer money if you have confidence in the deal that you are striking with her. If you lack that confidence or if there is no reason to believe that she will hold up her end of any deal you might wonder what is the point. In exchange for money perhaps you can get her to sign an agreement wherein she acknowledges that she is not a tenant, has not rights as a tenant in the rental unit, agrees to vacate by a specific date, and acknowledges that as of that date you will change the locks and trespass her from the unit. Such a document will have more weight if she gets Independent Legal Advice and they witness it. Does your school have a legal clinic where she could go to get free legal advice? Does your school have an arrangement with a community legal clinic or law school to provide students with legal advice? Getting her to sign such an agreement in exchange for money would be of value to you in the event that she fails to move out. If getting legal advice for her is not possible--consider getting a third party to witness the document and get them to confirm that she signed the document of her own free will and not under duress.
DeleteGood luck.
Michael K. E. Thiele
Hello, Michael.
ReplyDeleteThank you for writing the article, it is very informative.
I believe my roommate falls under
SCENARIO 2.
Points.
My mother owns the house.
I live at the house just me.
I let a friend move into a spare room we had.
he originally wanted to stay for two months. end of August.
He moved his belongings in on June 30th. he was supposed to be here for July and the month of august.He actually filled the living room and kitchen with furniture because, the house I live in is little small, he came from a larger house he also has a large dog that occupies the kitchen... anyways...
He paid 350 to me cash on July 1st.
we have no written agreements,
he did not pay first and last,
he does not have a rent receipt.
he does not pay any utilities.
that being said, he started being a real "asshole" walking all over me shutting down my requests.
he is a compulsive liar after being walked all over for two weeks, I realized I was being taken advantage of.
on the 21st of July I told him he was going to leave at the end of July on the 31st.
it was 10 days notice.
Does my roommate fall under SECTION 2.
eg. pretty much zero rights. hes not listed as a tenant anywhere.
If he is still in the house on august 1st, can I call the police to have removed him from the property?
I was hoping my post would be short, I tried my best to focus on just the relevant points.
Hi Jordan: On the assumption that these are the complete facts I'm comfortable saying that yourroommate does not have any rights under the Residential Tenancies Act. Firstly because there is an exemption under s. 5(i)--sharing kitchen/bath with owner's child. Aside from that exemption, he still wouldn't be covered under the RTA as you are the tenant and he is a roommate--meaning he has no rights under the lease. His rights, if any, are based in contract. If your decision to remove him were ever challenged the thing that would be looked at is the reasonableness of your demand in the face of the terms of the contract. If the contract is silent then reasonableness would be measured against the circumstances. Having evidence of how you were poorly treated would be handy to keep--and certainly make notes of the specifics of why you asked him to leave and keep those.
DeleteYou've made it clear that you want him gone on August 1 and after that time he becomes a trespasser. The police should remove him--and most often they will. However, in the exceptional circumstance where the police decide to call this a "civil" matter you could find yourself in the position of having to get a Court order (Writ of possession).
Best of luck
Michael K. E. Thiele
Hi Michael. Thank you for writing this article - it is really timely for me!
ReplyDeleteI am a housemate (so falling under scenario 2) and rent a room from the main tenant. I am not on the lease and do not even have the name/contact details for the landlord.
When I first moved in we had a written agreement regarding payment of rent and the timeframe I would be there. This timeframe has since lapsed and I am there on an unofficial “month-to-month” basis (there has been no discussion as to when this arrangement would be revisited)
Since living there, over time the arrangement has become quite stressful for me. My housemate has locked off large sections of the apartment (e.g. lounge room) so I do not have access and earlier this month came into my room and moved things around and even took (stole!) items. This was the last straw and I have since found an apartment of my own in which I get possession of the keys at the end of the month.
I’m just unsure now as to whether I have any obligations to provide a certain period of notice that I’m leaving, or if I would be obligated to pay rent until the room is rented to some other poor soul. I want to make this process as smooth and stress-free as possible, which is why I haven’t told him yet as I don’t want to come home to all of my possessions on the street and the locks changed before I have somewhere to go.
Any guidance you are able to provide that may help ensure I never have to speak to him again once I leave would be GREATLY appreciated!
Thank you!
Hi: Whether you are required to provide notice or not is a matter of your contract with your roommate. Presuming that there are no explicit terms about notice what should guide you is reasonableness. What is reasonable depends entirely on the context. In my view having portions of the unit being locked off and being denied the use that you were supposed to have and then having personal items stolen reduces the required notice to zero. That being said, proof will be the key if an issue is made of this. Take some photos of the locked lounge and consider what evidence you could collect (while still in possession) that would prove your point that continued living in the unit would be intolerable and that giving Notice would actually cause you harm.
DeleteIf, and it is a very big "if", the tenant sues you in small claims court for failing to give appropriate notice then you would argue that no notice is legally required. Then alternatively, you would argue that if notice is required that the appropriate notice in this case is no notice given the tenants breach of the agreement in denying use of the lounge and the implied term of the agreement that he wouldn't steal from you. In the even further alternative, if Notice is required and zero is not appropriate then you would say 24 hours, 48 hours, 7 days, 30 days, 60 days, is appropriate (you'd pick one only if you're inclined to argue this further alternative (I'd stick to zero). The argument would be that the absolute maximum is 60 days because that is the maximum that a lawful tenant under the RTA would have to give when on a month to month (surely it can't be more than that).
I guess the point is, and what you're looking for, is that there isn't some law that specifically sets out what the obligation for notice is. It is arguable that because your contract did not provide or require notice that no notice is in fact required. Again, entirely contextual.
Best of luck.
Michael K. E. Thiele
Dear Michael
ReplyDeleteFirst of all thank you for the article and answering to scenarios...
I just got one on my plate yesterday.
I signed the group lease (4 others) with the landlord, guess Scenario # 1. Lease signed Feb 2013 for starting September 2013 for one year lease. Due to my selection in the university out of Canada, i had to accept the opportunity to move outside Canada. I notified landlord prior to start of lease in advance and to all my roommates that moving to other country.
However, I tried from my side to find someone but when unsuccessful, informed roommates about the situation prior to start of the lease. There was a situation when one gender was available but my roommates did not accept that. I had no choice to leave the country and pursue studies outside Canada.
Landlord interim followed with occupied 4 tenants for a rent and informed that they are responsible for vacant space as well. Occupied tenants living proximity to university chose not to find replacement and continued staying in house enjoyed the extra space when after 5 months later landlord sued occupied tenants for rent in the L and T board. Occupied tenant paid the amount to the landlord when order was issued against them and consented to move out my name from the lease which appeared on the order.
Now other tenants have filed lawsuit against me under small claim count about recovery. I have neither signed any agreement with other tenants, never occupied any space in house, moved out of country and informed in advance to all parties involved prior to start of lease. What should be my stand now? Are there any arguments under small claim? They served the notice when i was in town for vacation break but my current place of residence is out of Canada. Please advise about my defence...thank you
Hi: You should make sure to note the timelines for filing a defence and ensure that you follow the rules of the small claims court so that you are not denied an opportunity to defend this claim. I can't possibly advise you about all possible defences given that I haven't seen the documents, emails, and communications respecting this tenancy. However, I can say that one defence will be definitely be to challenge the roommates on the steps they took to re-rent your room. They can't just sit back, use the space, and then expect you to pay for it. The duty to mitigate is significant and I would explore that fully. For additional defences and given that you're out of the country for the most part, consider finding a local law firm--that might let you use an articling student to defend you. The cost should be affordable and the student would get good experience advancing other defences depending on what is found in the documentation.
DeleteBest of luck.
Michael K. E. Thiele
Hi. I moved into a 2 bedroom apartment with my dad 3 years ago. I was 16, am 19 now. My dad has bought a house in the country with his new girlfriend and spends about 90% of his time there, but they keep this city apartment for me and when they need to stay in town. Never bad any problems, never had late/unpaid rent. As I am going to post secondary this year my dad has agreed that i can get a roommate to split rent with me. My landlord has raised the rent a couple years in a row, which is fine, but it have heard him make racial comments about me to another neighbour and that I will soon be moving (not true, I want to stay in this apartment.) My dad signed the first year lease and that was the only signed agreement. Do I have to ask the landlord to get a roommate? I am scared he will kick me out if I ask him. What can I do next? Thank you.
ReplyDeleteHello
ReplyDeleteWhat if in scenario 1, one of the tennants is engaged in some form of illegal activity and the other finds out and wants no part of that situation and wants to move out as soon as possible. What recourse does he haveÉ
Thanks
Hi, my daughter rents a room where the landlord and his family also live, yes she shares the kitchen and the bathroom, from what I can gather she is not covered by the residential tenancy act for ontario. my question is, is she covered under any piece of legislation? The landlord quotes the tenancy protection act, for which I can not find any such thing but it appears he is trying to follow the rules of the rta. ie. 60 days notice. She wants to leave earlier as it is not working out, what recourse does the landlord have against her?
ReplyDeleteHi Michael: I'm absolutely astonished at the depth and breadth of your blog. I'm still reading, but I have a question regarding joint tenancy which I'm hoping that you can find time to answer.
ReplyDeleteI'm a landlord in a student neighbourhood I live in. I rent several whole houses close by my own home to groups of four students who come to me as pre-formed groups, generally out of first year, and they tend to stay for the remaining three years. They have usually lived together in residence and they sign a joint tenancy lease. I do my best to explain what this means for them, but one aspect of the RTA has me quite confused. The groups usually stay together, but it does happen that someone needs to leave for some reason, usually for a co-op placement in an upper year. I have always allowed a sub-let or an assignment, but reading Interpretation #21 of the RTA, I see the following:
"A joint tenancy can be severed by the actions of a tenant and/or the landlord. For example, if one of a number of joint tenants seeks to assign or sublet his share of the rental unit and the landlord consents to that assignment or sublet, the former joint tenancy will be severed and a tenancy in common will result."
I'm really not sure where this leaves me as a landlord. The RTA states that I can't refuse a sublet or assignment (nor do I want to). If a student needs to leave, I think it's quite reasonable for them and their other housemates to find another person they are comfortable living with. But I really want to maintain the joint tenancy status of my leases. Currently, at the end of a fixed term lease, if one of the tenants is leaving, I give the remaining tenants the option of signing a new lease with a new person that they find. But this doesn't seem to be possible in the middle of a fixed-term lease.
To date, this has not been an issue, but is there any way to avoid this problem?
Thank you for any insight you can offer,
Julie
HI Julie:
DeleteAn amazingly complicated question and I fear that this response is not going to offer a whole lot of clarity. Frankly, interpretation guideline #21 in my opinion only adds to the confusion and really isn't helpful. In my experience the LTB does not do well with the legal concepts of "joint tenancy" or "tenancy in common" as there is a limited understanding what these concepts mean. Further, there is a suggestion--by some authors--which I think is accurate enough that the concepts of joint tenancy and tenants in common has been replaced by the statutory tenancies created under the RTA--meaning those rules are not applicable in the context of the RTA. Principles of property law that traditionally informed an analysis of the rights and obligations of landlords and tenants has been slowly replaced with contractual principles and statutory requirements.
A complete reply to your comment would span numerous pages and I'm not sure that I could even write it without researching it more myself. That being said, I'll make a few observations and perhaps that will be helpful to you.
Your willingness to let a group of tenants swap out individual members of the group for a "new" person is practical and quite fair. I think, though, it is wrong to consider this act as a "sublet" or "assignment" of the tenancy as those concepts are described in the RTA. Sublets and Assignments, by definition require the tenant to vacate the unit. Your tenants are not vacating--only one person in the group is vacating which does not lead to a sublet or assignment of the existing tenancy.
So, if a single person from the group leaves and a new person enters the group--query whether you have any right at all to agree or disagree with this change. I don't think that you have any right at all on this point--it isn't a sublet, assignment, and the new person is not an unauthorized occupant as contemplated under the RTA. The new person, may simply be a roommate or may be characterized as an under-tenant (or under-tenancy over which the RTA has no jurisdiction). The original group of tenants remain liable to you for the obligations under the lease--including the person who has left. The "new" person is not really your problem nor relevant to you. If you accept rent from them--perhaps they become a deemed tenant under the RTA--but it doesn't in my view change the liability of the original group of tenants.
What you describe in your comment is that you want to be part of the solution to the tenants' problem of swapping out a member of the group, terminating the liability of the group member who is leaving, and imposing that liability/responsibility on the person who is joining the tenant group. The short answer to doing that, I think, is to do exactly what you are doing. You will effectively need to terminate the existing lease and sign a new lease with the newly configured group of tenants. Perhaps this is done by simply scratching off the name of the old occupant, adding the name of the new person, indicating that the existing lease is terminated immediately by agreement of the parties and that a new lease is created for the remainder of the term of the lease just terminated, and getting all of the tenants and yourself to sign the lease AGAIN, indicating clearly that the signatories are signing as "joint tenants (one tenancy) and that they agree to be "jointly and severally liable" for the rent and obligations under the lease and RTA.
Whether doing this stands the test of severing joint tenancies, creation of a tenancy in common--I'm not really sure--but again, I'm not entirely sure that the tenants in common and joint tenant analysis of guideline 21 is in fact accurate or applicable.
There is so much to say about these concepts--and interesting quirks about them--but it seems clear to me that such a discussion won't lead to a practical solution. It is interesting, I think, that you could impose joint and several liability for the performance of the obligations in a single lease document that creates multiple tenancies of "tenants in common" by including that term of "joint and several liability" in the lease document itself for all of the tenancies created by the lease. With "tenants in common" there are multiple tenancies as opposed to the single tenancy agreement of a "joint tenancy".
DeleteI won't say much more here as this is one of those topics that simply gets bigger and more complicated the more you say about it. To keep it focused on a practical way of proceeding I think you end up with the least amount of trouble and with a single tenancy and joint and several liability for the payment of rent and meeting the obligations under the single lease by ensuring that your group of tenants 1) acquire their interest at the same time (i.e. terminate a lease and start a new one at the same time for the whole group), 2) Sign one lease out of which everyone's interest arises, 3), have the lease ensure that all of the joint tenants have the same interest in the property, and 4) specify (or at least don't divide up rights to certain space within the property to the group) that the tenants have the right to possess the whole property.
The foregoing 4 points are known as "The Four Unities" which are the cornerstone to the creation of "joint tenancies". Absent any one of these you have a "tenancy in common".
In addition to ensuring the presence of the 4 unities in the formation of the lease, use the words "jointly and severally liable" to describe the obligations amongst all of the signatories.
I think if you do these things you are unlikely to have the problems you fear having and you may be reasonably certain that cooperating with your tenants and allowing the swapping out of one member of the group for a new member will not deprive you of the benefit of joint and several liability (i.e. you can chase any one or more of the tenants for all of the money).
All of this being said, I think it is clear from the authorities and various authors that the issues you have raised is anything but clear. If you are unfortunate enough to face a dispute grounded in these issues the outcome will be entirely uncertain though perhaps, if you follow what has been set out here, you can tilt the odds in your favour.
Good luck.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
DeleteI am currently on a lease with two other people and we are jointly responsible for paying rent (though I've paid the entire portion in the two years we've been there). We had an initial one year fixed agreement and are now month-to-month. The two roommates are both leaving now and I will remain.
My understanding is that, once they move out, I become the sole tenant on the lease—therefore assume all risks/responsibilities. I want to have two new roommates who pay me rent but not sign onto the lease (so I can maintain control). My landlords have stated that they do not allow me to be the sole tenant.
My question: Can a landlord force an existing tenant to have incoming roommates/occupants added to the lease agreement?
Hi: You have it more or less right. Your current co-tenants, by moving out, do not actually take themselves off of the lease. Their liability continues. However, if the landlord were to take action he would likely take it at the Landlord and Tenant Board in which case your former co-tenant roommates could not be named in the application because the Landlord and Tenant Board will only deal with tenants as respondents to an application where they are in physical possession of the unit. Hence, any application would likely only be against you. If you turned out to be insolvent or otherwise incapable of paying the landlord could sue your former co-tenants in Small Claims Court.
DeleteFor your former co-tenants to get off of the lease the landlord would have to release them or alternatively they would have to terminate the lease. Of course, if your former co-tenants trust you and you are credit worthy and the likelihood of you skipping on the rent or trashing the place is slim then perhaps they are fine to simply leave and effectively leave the place to you.
You, by remaining in possession and paying the entire rent, are simply continuing the existing tenancy. The landlord doesn't have a choice about that. You may bring in roommates and they don't have to be "on the lease" as tenants. Again, the landlord has no choice about that.
So, the answer to your question is that a landlord may not force an incoming roommate/occupant to be added to the lease agreement.
Michael K. E. Thiele
www.ottawalawyers.com
Good Heavens. Thank you so much for your response - thorough and very useful.
ReplyDeleteYou're right that I want this to work for everyone, and I do see think your suggested way that won't be too difficult to implement. I think the tenants aren't too concerned about terminology; they just want to rent their spot and move on. If I continue to allow this, but tell everyone that we have to update the lease with a new lease, I'm sure they'll be fine with it. As it is, we sit down together to add the new person, eliminate the old person, and sort the last month's deposit out for the departing tenant, so one more piece of paper won't be a hassle and will certainly put my mind to rest.
Thank you so much for your help, and now I'm going to go and write a response to your question about the conjunction OR on the post about repairing or paying for damages. It's also an interesting question. :)
Take care,
Julie
I am looking to rent a room with a private bathroom but it would need to include use of a kitchen. How can I protect myself from paying rent and then having the police come and remove me. It doesn't sound like any agreement would help as I would be sharing a kitchen. What would help to protect me in this type of enviroment? Thank you for your help!
ReplyDeleteHi Denise:
DeleteThe exemption from the application of the RTA respecting sharing kitchen and bath arises when you are sharing with a landlord. If you are sharing with other tenants (such as in a rooming house) the RTA does apply and you have the security of tenure that is provided by the RTA.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, I entered into a co-tenancy agreement with a friend as he could not afford the apartment himself. He has recently advised me that he will be not paying rent again. I left the apartment in may - and signed a letter with the rental office - however was advised not worth the paper it was written on. The rental office also advised me that even if I try to get off the lease the roommate would have to re-apply. He obviously has chosen not to - so technically I am still active on the lease. What can happen to me? PS - I wanted to note that my roommate was my bf who beat me up and threw me out - it would not be safe for me to live there.
ReplyDeletehttp://www.cleo.on.ca/english/roommates/situations/situationD.html
ReplyDeleteThis is the situation I’m in, “Situation D” as a “Licensee” in Ontario. (I realize this is an old thread.)
We live in a Mobile Home Park, so neither the owner of the unit or my roommate are able to claim rent, because the unit is owned outright (no mortgage) and they’re only paying fees to cover land taxes, hydro, grounds maintenance, etc.
Am I entitled to rent receipts if they aren’t? We don’t fall under the RTA or Landlord/Tenant act.
Hi: I'm sorry but I don't quite understand what it is that you are asking. That being said, you are entitled to a receipt for anything that you pay for. While you may not have RTA protection, you are paying a "rent" to live in the unit. If you ask, you should be given a receipt for that. If you are asking whether you can claim that rent on your taxes the best person to ask is your accountant or tax preparer. I don't provide any direction on tax issues as the application of the income tax act is best left to people who work with it every day.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Michael,
ReplyDeleteyou have some very interesting information here, but I need a little different info. I own a secluded waterfront property which is my main residence. I have 2 rooms I would like to offer out with specific services. Firstly I am looking at offering these rooms to seniors whom are still healthy and active. I will be offering them a shared kitchen and bathroom. All Food will be supplied, included. Use of all common spaces. A garden if they wish to putter. As I may be away for weeks at a time. I will have yard maintenance, snowplowing, house cleaning and laundry services supplied. TV and internet in room and in great room available. The only item the people will have to do themselves is cook. they may have their own boat at the dock and parking for one vehicle each. Where can I go to find rules and reg concerning this type of arrangement. How can I get people to leave if we have compatibility issues? How can I make sure they leave and go to proper accommodations if health issues arise. Can these things be built into an agreement? Can this be put into a simple 1 to 2 page agreement. Can you furnish such an agreement. If so, please contact me. trademakers@yahoo.ca
I live in a mobile home park. I out right two trailers. I live in one my daughter in the other. Now, she would like to get a room mate. I do not give her receipts as she pays me just the land fees and utilities. Would I have to give a room mate receipts? I do not even claim the taxes on her home as I do not live there. Please a little guidance here.
ReplyDeleteHi,
ReplyDeleteI gave my 60 days notice to move out of my apartment to my roommate. We are both on the lease and the lease expires July 1st. after I gave my roommate my notice I signed a new lease for a different apartment in the same building. My roommate thinks that I am responsible for finding someone to take my room and that I will have to pay rent there until I do find someone. Is this true? Or is it his responsible as I am no longer on the lease as of July 1st?
Hi: This is an interesting problem and a recurring question that does not have a perfectly easy answer. Ultimately, I think you are off the hook after your 60 day notice especially because your landlord has accepted the notice and has proceeded to rent you a new place. You have no contract with your soon to be former roommate (that you've mentioned) therefore your roommate should be advised that as far as you are concerned the tenancy is over and that he/she needs to move out or make arrangements with the landlord to sign a new lease as of July 1, 2015.
DeleteYour notice of termination to the Landlord has, in my opinion, the legal effect of terminating the entire lease. After July 1, 2015, the Landlord could apply to the Board to have your roommate evicted.
The signing a new lease in the same building with the same landlord is very handy for you as it certainly speaks against the landlord pursuing you for unpaid rent arrears for any period of time after July 1, 2015, that your former roommate continues to occupy the space and not paying the full amount of the rent arrears.
Be aware that there is some dispute in the Landlord and Tenant Law legal world about whether a one tenant on a lease with multiple tenants is able to terminate a lease unilaterally without the consent of the other tenants. In my opinion, what you have done is entirely permissible and in fact correct in law. However, some would tell you and the Landlord and Tenant Board 1-800 info line sometimes tells you that you are not able to terminate a tenancy unless both or all of the tenants sign the N9 form. Frankly, I think that is wrong in law.
Make sure to write your roommate and email or text confirming that you gave him/her notice that you were moving out and terminating the lease. That the notice was 60 days and that after July 1, 2015, you are no longer a tenant in the unit and are not responsible for anything in relation to the unit. Make sure to take some pictures of the condition of the place on your move out so you can prove what the place was like when you left. Ask the Landlord, in writing, to do a move out inspection as well. Further mention to your former roommate that since the lease is over she/he should find a new place to live or make deal with the landlord to continue in the current apartment.
Once you have done this there isn't much to talk about with the former roommate. Your legal position is clear and that's that. Make sure to get your name off of any utilities accounts as well.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Mike,
ReplyDeleteI'm a landlord and I have a semi detached house and I rented out individual rooms to students. I have rental lease with each of them. I think this is your scenario 3.
Currently there are 2 students occupying two separate rooms. Because of the many issues my tenant students have, e.g. cleaning, garbage, I want to stop renting rooming units, and rent the whole house to one family. But before doing that, I want to renovate the house - finish the basememt, change kitchen cabinets etc. I just gave them the N13 notice on May 3rd.
My questions are:
1. I put both of the students names on one N13 notice. And gave them each a copy on May 3rd with the termination date on August 31. Would this be okay? They are in two separate rooming units. I want to remove both of them, so that I can have the entire house back for renovations.
2. I placed the N13 notice under their room doors. And also I emailed them soft copies of the Notice. In the same email, I asked them to acknowledge the receipt of the Notice, but they didn't reply. I also texted them messages to tell them the N13 Notice has been delivered and emailed. No response either. How can I prove that they received the N13? What are my options if they claim they never received the Notice?
3. In May and June, I'm planing to have an architect over to design and draw plans of the basement. I don't have to give 24 hour notice before entering the house as long as I don't enter their rooms, right?
4. One of the student had been late for payment for almost a year. I just started to give him N4 in May. But I kept all his payment history. He had his dad as cosigner. Can I still give him N8?
Thanks for the help!
Linda
Hi Linda:
DeleteOn these facts you are likely okay with both names on the same N13 but it seems like you have two separate tenancies and hence each should have their own N13. How did you handle the issue of the address of the rental unit? Each tenant would be in a separate room with a separate lease for each of them? If so, it is difficult to understand how one N13 would work.
The N13---on the basis of a renovation is a 120 day notice with the requirement for building permit. You should be aware that on a repair/renovation N13 that the tenant has a right of first refusal and can exercise their right to move back in (s. 53 RTA) after the renovations are done. Perhaps it is more appropriate to consider the N13 from a demolition perspective---you are demolishing multiple rental units to turn it into one rental unit. Demolition has no right to re-occupy and it seems to fit with what you are intending to do.
For the architect entry I would be inclined to give notice of entry under section 27(3) RTA.
You may of course proceed with an N8 at any time. If there is a history of late payment then it would be lawful to proceed. Be aware that an N8/L2 application normally results in an Order from the Board requiring the tenant to pay the rent in full and on time for a period of 1 year--and if that is done then the tenancy is NOT terminated.
The acknowledgement of receipt of the N13 is not something that the tenants are required to give you. If they are not cooperating you can presume that they have their own "plan". Perhaps they are tuned into technical deficiencies in your notice and have received legal advice that your forms are void (i.e. address issue?). The only way to know for sure where the tenants stand is to serve the Notice that you intend to rely on and then proceed to issue an application at the Landlord and Tenant Board and serve it on the tenants. That hearing process will tell you what you need to know about the tenants' intentions.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
if you are in a month to month lease in nb in a apt how much time does your roomate have to give before she can move out
ReplyDeleteThis blog is limited to Ontario law. Sorry can't help.
DeleteHi Michael,
ReplyDeleteMy mom's boss referred me to your blog! My situation falls into scenario 2.
Basically I signed a one year lease with a friend from May 2014-May 2015. My friend moved out as she was leaving the city but I wanted to continue living there so I found another roommate to share the apartment expenses with me. My old roommates name got taken off the lease and I am the only named tenant.
I wrote her a written paper stating she would be renting from may 2015-december 2015 and that she is to pay 575 all inclusive. It has only been 18 days she has lived with me and she has made my life impossible.I have a little puppy (my apartment is pet friendly) and she loved him at first but like all puppies they like to chew and unfortunately chewed part of her chair and one of her shoes. After the incident occurred we agreed that we would bring her chair to storage and that she would take away anything she didn't want damaged as i do myself to avoid further damages.
She has sent me passive mostly aggressive text messages, demanding and commanding me to things for her and alter my living arrangements and habits. She has basically harassed to the point where she said she will withhold part of her agreed portion of rent to pay for the damages my puppy damaged due to her negligence to leaving her belongings near his reach.
At this point, I do not want to live with her nor can I see us coming to any sort of agreement. She has physically abused my puppy and made my life impossible in the spam of 18 days. She gave me first and last months rent. Am I allowed to tell her her last month will be june 2015 and ask her to move?
Hi: As the only named tenant in the lease you are the only person entitled to live in the premises. An equivalent situation is that you are the owner of a house and you have a long term guest staying with you. You have the right to exclude anyone from your house at any time. The issue in landlord and tenant relationships is that it is sometimes difficult to get the police to take steps to remove someone if that person does not voluntarily leave if you demand that they vacate. Sometimes, you will have police who insist that you get a Court order to remove the person. That, unfortunately, is extremely expensive--though the costs can be passed on to the person who refuses to move out.
DeleteThe short answer to your question is "yes" you can ask her to move out at the end of June. If you don't get a sense that she will agree to leave at that time consider contacting a lawyer to get a Court order to remove her or speak with the local police to see if they will assist you. The abuse of your puppy is very concerning and I think that is a pertinent fact that would get the police to take action.
Good luck
Michael K. E. Thiele
thank you so much for your quick response, you have been so helpful :)
DeleteHi Michael,
ReplyDeleteThanks for sharing your insights here. I have a question about my ability to file an application with the Landlord and Tenant Board. My landlord has been engaging in abusive behaviour. He threatened to evict us because of a cockroach infestation (an unenforceable threat, I gather), refuses to make necessary repairs (the lock in our front door is faulty, and the kitchen faucet leaks), and told us that he has bedbugs in his unit and it's our fault (we've never had bedbugs in our unit). He addresses us with racial epithets in writing. He has also threatened to murder my roommate, and described how he would do it. He has now stopped communicating with us completely since we referred him to relevant sections of the Act.
Obviously we need to leave. I wanted to take him to the Board regarding his threats and harassment, and to seek my moving expenses and payment for the rent increase I'll be experiencing. I think we have a strong case and lots of evidence. But in reading your blog it seems that I have no rights in this situation. My roommate moved in 5 years ago and signed an agreement with the landlord. I moved in 3.5 years ago and signed nothing. As I understand it, my roommate is the only "tenant" and the only person with any rights or obligations under the Act. He can file an application with the Board, but I can't. It's not clear that I could even participate in an application if my roommate chooses to file one.
If I'm missing something, please let me know. It does seem that I have no protections and no avenue to seek remedies from my landlord. Thanks for your help.
Steve
Hi Steve:
DeleteWhether you are a tenant or a roommate is a question of "fact" that can only be determined by looking at all of the facts. The timing of your entry into the unit (after your roommate), and not signing anything, are just two factors. In some circumstances this might mean that you are not a tenant--legally speaking. However, if the intention was that you were to become a tenant, the landlord recognizes you as a tenant, and you have paid rent to the landlord, and you have dealt with the landlord as a tenant, then you may very well meet the definition of tenant under the Residential Tenancies Act. It may be worthwhile to look at the definition of tenant in the RTA which states: "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 ... etc. "
You can see from the definition of the term tenant that it is broadly defined and not exhaustive. Depending on all of the facts you may indeed have an implied tenancy notwithstanding that you never signed anything. Do the facts support you being a tenant? If you told someone all of the facts of how you interact with the landlord, how you pay your rent, how you live in the place--would that person conclude that you are a tenant or would they conclude that you are sharing space with a tenant? If the answer is you're a tenant it is likely worthwhile to explore your options further. Remember as well, you can assert that you're a tenant and the landlord would have to prove that you're not a tenant. I think that presumptively you would be considered a tenant considering the length of your occupation of the rental unit.
If you are not a tenant and have no right to bring an application independently, you roommate tenant certainly has the right to bring an application. How you were treated is something that may be considered under section 29(1)(3) as a member of the tenant's household. Hence, compensation is available for your experience through such an application.
Aside from the foregoing, I'd urge you to consider an application under the Ontario Human Rights Code. Some of the things you describe--aside from just being plain disturbing---are also clearly founded on discrimination (race). Check out the Ontario Human Rights Tribunal website as well as the website of the Ontario Human Rights Commission. Discrimination in rental housing is prohibited and if the Ontario Rental Housing Tribunal lacks jurisdiction to adjudicate your claim because you are technically not a tenant you might indeed find that the Ontario Human Rights Tribunal will take jurisdiction to adjudicate a claim based on how you were treated (this seems like a promising basis to make a claim given that the landlord actually wrote the racial epithets).
As I often say in these replies, don't make your decision about the "legal" aspects of your claim entirely on your own. This blog provides information but nothing effectively replaces personalized legal advice obtained on consultation with an experienced lawyer or paralegal.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you Michael for your prompt reply. I have been giving my half of the rent to my roommate, who pays the total to our landlord. It's just a matter of convenience, but this arrangement might make it easier to claim I'm not a tenant. However, in every other way my case looks stronger. I've been the primary point of contact with our landlord and the author of joint communications from me and my roommate. I would definitely say that our landlord treats me as a tenant, and has done for the length of my stay. The Humans Rights Commission is an avenue I hadn't considered - thank you for suggesting it.
DeleteYou've given me some hope. I understand this is not legal advice, just information. Thank you for taking some time to share your insights.
Hi Michael. Thank you for taking the time to answer some of these questions! My friend has a somewhat complicated scenario, and I am trying to help him sort this out. He and his ex-girlfriend were jointly signed to a lease. She moved out about a year ago, and is very bitter about the break up. She refuses to remove her name from the lease, and she has also pressed criminal charges against him and has a civil suit pending as well. He signed a responsibility letter quite some time ago, but he is afraid that she can return to the unit and force him out or destroy his belongings (as she had done prior to moving out). Is there any way to remove her from the lease without her explicit consent? Is there any sort of abandonment clause after which he can take over the tenancy solely? It seems strange that she could remain on the lease in perpetuity regardless of how long it has been since she has been there, and particularly in light of the charges she has laid against him. Is there any sort of legal recourse whereby he can have her removed in small claims court?
ReplyDeleteHi Micheal,
ReplyDeleteThank you for taking the time to answer everyone's questions; it is greatly appreciated! I have a situation of my own for which I am unsure of how to proceed and was hoping for your insight.
I recently entered into a group lease agreement with three names on the contract (12 month, starting May 1). The division of the rent was agreed upon verbally on a room to room basis (each room having a slightly different division) as well as an even split of the utilities. Myself and flatmate #1 (henceforth named A) were staying on from the previous year. Flatmate #2 (henceforth B) was new to this years agreement and found the place as he is friends with A. I signed the lease at a different time than A and B who signed at the same time. There was a conversation between A and B, at the time of their signing, to the effect that B did not want to move in until September even though it was a 12 month lease. I was not present at the time of this conversation so everything that follows is based on what A and B have told me. A made certain assurances to B that a sublet would be found and most if not all of his portion of the costs would be covered. Quote from B, "I was also assured by A that i would not have to pay anything until sept". A does not agree entirely with this quote. No sublet was/has been found by A or B that would fully cover B's portion of the rent for the summer months.
As of writing, A has agreed to pay for B's rent for the four months in dispute. However, both A and B have refused to claim responsibility for the share of utilities for B's room which are paid to me. I am attempting to negotiate an agreement between the two of them (they are legally not allowed to talk to each other as part of a bail condition) but with no success thus far. How do I proceed if neither of them agree as to who is to cover the costs of the utilities? Has A put himself in a position whereby agreeing to pay for the rent for the room, he also has to cover the utilities?
The second half of this whole mess is that now B has decided to no longer move in for September. This would place us in situation 1. as stated in your article, with one person walking out on the group. My understanding, therefore, is that this would mean if B fails to pay, A and I have to cover his portion. In order to reclaim it, we would have to take him to small claims court. Do we have grounds for a case against B? If yes, do A and I have to attempt to cover his costs starting from September before moving forward? I.e. are we required to attempt to find a sublet for him?
Thank you for your time and I appreciate any comments you may provide.
Cheers.
Hi: What a very interesting life you lead. Roommates with bail conditions that prevent them from speaking to each other? How can they possibly expect to live together? Anyway, the most direct answer that I can offer you is one that sort of side-steps the solution that you're going to have to find. In your facts there is a hint at the possibility that the lease is not one lease with joint tenants/joint tenancy due to the lease being signed at different times. Personally I don't think that will go anywhere with the Landlord and Tenant Board and I think, based on these facts, that the three of you have signed a single lease which I assume has a simple requirement that a certain sum be paid as rent for the entire rental unit (i.e. there is nothing in the lease that creates multiple tenancies or a tenancy in common). On this basis all three of you are responsible for the rent to the landlord. If the rent is not paid then the landlord can take steps against any or all of you for the unpaid rent and even terminate the tenancy if that is the route the landlord wants to go. Ultimately, if the landlord collects all of the rent from only one tenant then it will be up to that tenant to collect the appropriate share from the roommate(s) and failing an agreement sue in small claims court.
DeleteUtilities are another issue. The utilities accounts are likely open in the name of one of the tenants. Unless everyone chips in, the person whose name is on the account is going to be stuck paying the bill. I don't think, on your facts, that A has agreed to pay for the utilities. Frankly, I don't think A is committed to pay the rent either. A's assumption of the rent, to buy peace, should not be interpreted as a legal obligation to pay the rent. The disagreement over sub-letting and expectations about summer rent is unfortunate. Nevertheless, B signed the lease starting right away and not in September. It will be B that has to prove that A agreed to cover the rent and utilities for those months. Otherwise, my view is that a Court would divide everything by 3 equally subject to any proof of agreement to the contrary.
To your last point. If one of the group moves out the liability for the rent continues during the term of the tenancy. Terminating the tenancy within the fixed term of the lease is not practical especially if the landlord does not agree. So, two of the group remain, the third will remain liable for a reasonable period of time for the rent and share of utilities. The remaining two will have an obligation to mitigate the losses (i.e. reduce the amount to be claimed from the tenant who moved out). That reduction happens by trying to find another roommate, advertising aggressively and trying to reduce the costs that the tenant who moved out should have to pay.
Good luck, I hope that gives some perspective.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you for your prompt reply Michael. Your insight is very helpful. Trust me when I say my life could do without this level of interest!
DeleteYou are correct in your conclusion that even though we signed at different times, we all signed on the same lease. The signing at different times is important as it was at that time when A apparently made certain promises to B.
Ideally I want to avoid Court, however, B seems to welcome the idea of it. If you have a moment, I have a few follow up questions related to litigation.
At this point it looks as though the expenses associated with B's withdrawal from the lease will total around $1200 (assuming a sublet is found for September). Is this even worth litigation? What sort of expenses are incurred pursuing a case like this? Do you recommend having a lawyer present of do people tend to pursue cases of this nature personally? Can I claim expenses beyond utilities/rent (i.e. advertising for the room, missed work hours, time spent searching)? Do I have to wait until the expenses are incurred (e.g. B not paying rent in August) to litigate?
The is no record of what occurred in the conversation between A and B at the time of signing. They disagree upon what was said. B claims A stated he wouldn't have to worry about any costs until September while A claims B was told most of his summer costs would be covered provided a sublet was found. The only written comments on their conversation are in emails from the past couple weeks containing heresay that I sent to A or B trying to figure this whole thing out. Is this sufficient for B to prove a case against A? If yes, would A be solely responsible or would some of the costs fall to me as the other tenant?
Thank you for your time and comments thus far.
Hello Michael,
ReplyDeleteI currently rent a house with a basement apartment that the landlord has granted me permission to rent to occupants or roommates if you will In this scenario I would remain the sole tenant by way of the lease with the landlord and would effectively presume I would retain authority as the tenant. In your article you recommend a contract or agreement with the roommates or occupants and I would like to get a little more information on that. Essentially, I would like to know if I ask the occupant to agree to a fixed term and collect a last month's rent deposit from him/her? Also, if I were to have move out prior to the end of the fixed term outlined in the agreement (I am now month to month), can I legally provide notice to the occupant and ask him her to vacate within that time frame (say 60 days)? I read your article to suggest that I am not bound by the RTA in this type of relationship so do I have more flexibility in terms of conditions set out in the agreement provided that he/she is willing to agree to them in writing?
Hi: Your legal relationship with your roommate can be governed by the terms of a written agreement. Your roommate is not technically a tenant and hence would not have the same broad scope of RTA rights as you do with your landlord. It is helpful, in a roommate agreement, to set out the terms of your legal relationship. Note that you are living together in close quarters and you might find that it is very difficult to live together. Setting out the amount of the rent, due dates for rent, leeway for late payment (if any), standards of behavior, types of behavior--smoking, smoking drugs, drugs, partying, guests, over-night guests, cooking, housework, tidiness, utilities, bathroom times, parking, termination, amount of notice, notice for cause (theft, illegal activity, impaired safety), etc.. These are all good things to have in an agreement but of course the agreement can go on and on. Note that as the drafter of the agreement it will be your responsibility to ensure that it is accurate and clear. Ambiguity in the agreement (contract) will be a interpreted against you.
DeleteMichael K E. Thiele
www.ottawalawyers.com
Hi there!
ReplyDeleteI really enjoyed and appreciated your article, as well as the work put into all of your replies. I took the time to read them all looking for a similar situation to mine and I am a bit surprised that I didn't find anything similar enough.
I believe I am in situation 3.
I have two other flatmates and part of the "rules" of the house is to split the utility bill 3 ways. I was unable to pay for it two cycles ago and the account holder covered my portion. Unfortunately, last cycle I was in a bind as well, and he covered it. Naturally, he wants his money back.
He had been asking me at least once a week for several weeks now where his money is and if I can ask my parents or friends to lend it to me, and that didn't work so well. So it's been several months that I owe him. He teemed up with the other flatmate 5 days ago to harass and bully and yell at me to "take it more seriously" after I apologised once again and repeated that there's nothing I can do for now.
Today, I overheard them discussing that if I still have bad news tomorrow, they want to demand that I hand over my keys/don't come home without the money.
So basically my question is can they do this? If I refuse to hand them my keys can they lock me out from the inside? (locks on the door that only someone inside has access to) if they do this, what steps can I take to protect myself? Not to mention, all of my belongings are in my room!
I should mention that I was never technically on the Lease, either. But I'm pretty confident
that paying monthly to the landlord makes me a tenant.
Thanks for your help I look forward to your reply!
Hi Christina: Let us assume that you are a tenant in the apartment sharing with two other tenants. The arrangement between the roommates to share utilities, rent, expenses, is an enforceable agreement in the sense that it is legal. Hence, if your roommate sues you, you would be found liable by the Court (this is a small claims court matter for values below $25K). Changing the locks, taking away your keys, excluding you from your home, is not something that I think would be considered reasonable unless that consequence is spelled out in a roommate agreement of some kind---i.e. you have agreed that if anyone fails to pay their share of the expenses when due that the remaining roommates can kick out the person who hasn't paid. Absent such an explicit agreement I think your roommates are likely stuck with taking legal action against you (i.e. suing you). As you have paid the rent the major part of your financial obligation is met--suggesting to me that excluding you from the premises is a disproportionate response to the problem. If you are excluded from the premises, by your roommates, I think you would have a bigger claim against them (again in Court) for the damages you suffer as a result of their actions.
DeleteAbsent a written agreement, I think a Court would look at this situation in the specific context of the facts. Hence, not every situation will have the same outcome. If you had not paid rent for a few months, or you committed an illegal act, or did something to seriously impair the safety of your roommates, then I think a drastic act like excluding you from the premises would not result in any serious consequence for your roommates---i.e. the Court would say what they did was reasonable under the circumstances and while perhaps not entirely legal there would be no damages awarded.
I don't think excluding you for not paying utilities is proportional or reasonable---given what a presume is a relatively modest amount. However, the more it adds up the more reasonable and proportional that prospect becomes. Unless you are literally not spending any money at all--not a Starbucks or Timmies in sight, the question becomes why are you not offering up every cent to cover this debt. The sympathies of the situation don't really rest with you and unless you can find the money to pay your share you should consider approaching your roommates very soon to advise that you can't afford the apartment and will be moving out.
Good luck. I hope you can find a solution to this issue. Resentment amongst roommates will making living together intolerable and it is best to solve the problem as quickly as possible.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael
ReplyDeleteThank you so much for this, you are rendering a wonderful service.
I think my situation falls into scenario 2. I live in a 4 bedroom apartment in Toronto. The least has the names of myself, my roommate “Q” and 2 previous tenants. We have 2 unofficial subletters currently occupying the 2 rooms of the 2 other lease-holders, but these subletters are not on the lease, nor do they submit rent cheques to the landlord – they pay my roommate and I, who are on the lease.
One particular roommate has not only caused damage, but has now created the following situation:
This roommate sent an email to Q and I at the beginning of May giving us notice that she would be moving out on August 1.
Yesterday, she sent me a text threatening not to move out unless she was given a cheque for last months rent immediately (i.e. by today at the latest). She stated that if she does not receive this check, she will refuse to leave the house.
When she gave notice in early May, I found an alterative roommate to take her place. This person is already confirmed and has already given notice in their own apartment.
What are my rights?
Not only are we not throwing her out, we are simply asking her to leave when she said she would an no longer send us text messages threatening to remain if her conditions are not met.
Is she covered by the RTA? What can I do to ensure she leaves the house? If it comes down to it, could we change the locks? Could this go to small claims court?
Thank you for everything you do on this blog!
C
Hi Michael,
ReplyDeleteVery informative information on this page.
The situation I have is that my step-daughter has moved back to the city where we live, in an apartment building with her boyfriend who is a roommate of the lease holder. His name is the only one on this agreement. The person has his girlfriend living there as well.
Our daughter came over last night with this so called "agreement for apartment 914" cause they deceided to get a cat,which the lease holder already has a cat. He got upset and went to a friends house who typed up this 3 paragraph page of things they can't do,what things will happen if they do it and so on. Basically it seems like they can only breathe and sleep in this apartment.
My daughter has not signed it,her boyfriend did. There are 2 lines that have Lease Holder(signature) with the only lease holder signed it,but his girlfriend also signed where it says Lease Holder 2(signature), but her name is not on the original lease where her boyfriend rented the apartment.
My question is, is this letter legal binding as someone else wrote it who does not live there,also there are no names mentioned in the 3 paragraphs,just refers to Tenant/occupants(s).
If I could, I could scan this page to an email and let you see what is written,or if you want I could type what it says on here.
Thanks,
Darrin
Hi Darrin: It doesn't matter who drafted the document for it to be a legal document. However, as the tenant presented it to his roommate to sign any ambiguity in the document would be interpreted against the tenant. Whether the terms of the document are binding or not depends on whether the essential legal elements are present at the time of signing. Given that this is signed after the relationship was entered into (tenant/roommate relationship) it may have some enforcement problems. It is difficult to say without reviewing the document.
DeleteI do recommend that you see a lawyer/paralegal to have the document looked at as this is the only way to properly comment on the legality of the document.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael
ReplyDeleteThank you so much for this, you are rendering a wonderful service.
I think my situation falls into scenario 2. I live in a 4 bedroom apartment in Toronto. The least has the names of myself, my roommate “Q” and 2 previous tenants. We have 2 unofficial subletters currently occupying the 2 rooms of the 2 other lease-holders, but these subletters are not on the lease, nor do they submit rent cheques to the landlord – they pay my roommate and I, who are on the lease.
One particular roommate has not only caused damage, but has now created the following situation:
This roommate sent an email to Q and I at the beginning of May giving us notice that she would be moving out on August 1.
Yesterday, she sent me a text threatening not to move out unless she was given a cheque for last months rent immediately (i.e. by today at the latest). She stated that if she does not receive this check, she will refuse to leave the house.
When she gave notice in early May, I found an alterative roommate to take her place. This person is already confirmed and has already given notice in their own apartment.
What are my rights?
Not only are we not throwing her out, we are simply asking her to leave when she said she would an no longer send us text messages threatening to remain if her conditions are not met.
Is she covered by the RTA? What can I do to ensure she leaves the house? If it comes down to it, could we change the locks? Could this go to small claims court?
Thank you for everything you do on this blog!
C
Michael,
ReplyDeleteThank-you for this amazing resource.
My 18 year old daughter is a second year university student. She is considering moving into a two-bedroom unit with a friend whose parents own the condo in Toronto.
The parents of her friend want to have our daughter sign a one year rental lease.
My questions are:
1) Does this make my daughter 100% responsible for damage given she is the only person with a lease in the unit.
2) Does the lease give her all rights as a tenant under the landlord/tenant law because there is a signed lease? Or will the exemption 5(i) apply and she could still be evicted like a roommate?
We just want to be sure we are aware of the rights and obligations at the onset. Thank-you.
Amber
Hi Amber: An interesting set of facts and I think it is possible for there to be multiple competing answers to your questions (that unfortunately are inconsistent with each other). So, I will offer you my view, but be aware that it is all open to interpretation and that ultimately the only opinion that really matters is the one rendered by the Court or Landlord and Tenant Board.
DeleteWith respect to your first question. In a regular landlord and tenant relationship the landlord has recourse against the tenant for 100% of the damage to a rental unit regardless of how it is caused so long as it is caused by the willful or negligent act of the tenant, occupant, or someone allowed into the rental complex or rental unit by the tenant or occupant of the premises. So, vis a vis the landlord, your daughter would be 100% responsible so long as the cause of the damage fits within a responsibility imposed under the RTA. That being said, if your daughter were found responsible for damage to the rental unit but that damage was caused by a roommate, occupant, guest of the occupant or of your daughter, then your daughter could sue that person in Court for the damage caused. It is possible that your daughter could be held liable under the RTA through a proceeding at the Landlord and Tenant Board and not be able to claim there against a roommate but instead have to proceed though the Superior Court of Justice which is a much longer and more expensive process. If your daughter were sued for damage after the end of the tenancy in the Superior Court then she could defend the claim and issue a third party claim against her roommate or whoever caused the damage.
Damage through negligence can be a big worry as roommates may cause damage (think frozen pipes, water overflows, candles falling over(fire)), quite innocently and those same roommates or guests may be flat broke and unable to indemnify your daughter for any damages award against your daughter. A partial answer to this problem can be buying tenant's insurance and making sure that you have coverage for the actions of all of the occupants of the rental unit (speak to your broker and provide the specific details of the living arrangement to make sure you get the right policy). Getting a separate stand alone policy for your daughter may be better than just extending coverage under your homeowner's policy if you are looking to get coverage for the negligent actions of your daughter's roommates as well. It is important to fully canvass the factual circumstances with your insurance broker to get the right policy and to make sure that you get more than just basic coverage (i.e. you want enough liability coverage in case they do, by accident burn down the building, or flood it, etc..).
With respect to your second question. I can see an answer that says this tenancy is RTA exempted and hence no RTA protection for your daughter. I can see the lease being a contractual arrangement that incorporates RTA terms but which does not actually give rise to any enforcement mechanisms under the RTA--i.e. no right to actually apply to the Landlord and Tenant Board and no actual right to security of tenure (statute based), nor right not to be evicted without due process under the RTA, etc.. Sharing with the Landlord's child is, as you say, an exempting fact under section 5i of the RTA.
DeleteHowever, it seems like it should be possible to enter in a lease, get RTA protection, and still share the premises with a child of the landlord. The only way I can see this coming about is if the landlord's child is a roommate. The landlord's child can never be a co-tenant as then I think the exemption applies. The trick to get RTA protection and the landlord's child as a roommate, is to enter into a Residential Lease with the landlord alone. That lease should recognize that the premises are being rented to your daughter alone and that at the time of execution (signing) of the lease that the landlord's child is not a roommate or a co-tenant and that while the tenant may choose to share the premises with the landlord's child in the future, the tenant is not required to do so and that any such agreement to share with the landlord's child is yet to be concluded and agreed upon. Then, if your daughter does decide to share with the landlord's child, you document the agreement to share with a written document that sets out the terms of the agreement fixing the date of the agreement after the tenancy agreement with the landlord has been entered into. The idea here is to create a valid landlord and tenant relationship between your daughter and the landlord. Once the RTA rights attach it is arguable, and supported by some caselaw, that the RTA protected tenancy can not be displaced by the landlord moving into the building (or in this case the tenant taking in the landlord's child as a roommate). I'm not aware of this convoluted process having been followed to get RTA protection in the circumstances described, but I think, in theory that this would work. Under this scenario it is your daughter that would have the right to exclude the landlord's child from the premises as the child would not be a tenant and only a roommate. Given the problem of section 5(i) I think you need to be very clear with the landlord that it is your intention to create RTA protection for your daughter and that this the reason to proceed in this way.
Michael K. E. Thiele
www.ottawalawyers.com
Hello Micheal, thank you so much or such a helpful webpage. I am currently the signed tenant for an apartment in Toronto with one other roommate. (I don't know how I got to be the only signed tenant since we bother signed the lease at the same time). Anyway, our 1 year lease is over and my roommate has decided to move out. My question is whether I should sign a new lease with whomever I find as a new rooommate. New tenants are paying more now than I do since I have lived here longer. So my concern is that my rent will increase too if I sign a new lease. Thank you.
ReplyDeleteHi Marika: Your expired lease continues on a month to month basis automatically and the same terms apply. Your rent does not increase by virtue of the expiry of the lease. Your landlord would still need to serve you with a Notice of Rent Increase (Form N1) in order to raise the rent. The signing of a new fixed term lease would not allow the landlord to raise the rent to whatever amount they wished as it is still the same tenancy and they would have to follow the rules in relation to rent increases. That being said, if you are living in a newer building your building may be exempt from the Annual Guideline Increase amount--meaning that your landlord can raise the rent to whatever amount they wish so long as they follow the RTA rules on rent increases and properly serve you with an N1.
DeleteWhether you should get your new roommate to sign on as a tenant or not is up to you. Given that you are already in possession and are carrying the rent perhaps you are better off simply signing a roommate agreement with your new roommate--set out the rules of the building (condo rules if it is a condo), get her/him to agree to abide by RTA requirements, set out terms of rent sharing and utilities sharing, and make provisions for how either of you can end the relationship. Make sure that the roommate acknowledges they are not tenants and that you can exclude them from the premises without notice for illegal activity, impaired safety or serious misconduct (this would include things like theft, assault, serious anti-social behavior), and then set a no fault notice that the roommate would have to give you to move out and vice versa.
Good luck
Michael K. E. Thiele
Thank you VERY much!
DeleteHi Michael
ReplyDeleteI planned to share an apartment with university friends this coming September on one year lease bases, studying in BC. This summer after completing my 3rd year, I went to Toronto since I had a summer job offer, I received a call from my soon to be roommates saying that they preferred to find an apartment, this summer, then sublet my supposed room for the summer - then as agreed I was to move in as planned in september to start my fourth year. They went ahead and they found an apartment, emailed me the lease which I signed too since I was to join them in September and meanwhile they were to sublet for the summer. To my utter shock I received a call from both my would be roommates claiming they could not find a sub-leaser for the summer and are now harassing me and insisting I'm obligated to pay for my room since my name was on the lease, but this is not what we agreed on, I already pay rent in Toronto doing my summer Intern Job. I feel they duped me into signing a lease so that they could have a whole apartment to themselves during the summer and had no plans whatsoever to sub-let since they had lied to me into signing the lease. previously they were living in the university residence. I feel betrayed and very hurt, these were supposed to be my friends, we attended the same lecture, I had my own apartment and they convinced me to share a place with them in September and now they want me to pay for summer rent when they promised me that they would sublet during summer. what is my course of action? if they can't afford to pay rent and refuse to sub-lease as they promised what right do they have to live in and apartment during summer that they can't afford and expect me to pay for their rent? please advise..
Hi: What a very unfortunate situation. Any legal answer is very unlikely to help you solve the emotional and personal issues that this situation will raise. It seems to me that if your feelings of deception are confirmed and nothing resolves the personal animosity that will exist between you and the roommates that actually moving into the apartment in September will be a mistake. If you pay now you will resent them and if you don't pay they will resent you. This is a tough situation.
DeleteUnfortunately I can't really help you with the legal side of this problem. The rental unit is in British Columbia and my comments are limited to the law of Ontario. The law in Ontario does not do a good job of addressing roommate problems like this. Perhaps the law in BC is better. Unfortunately I do not know the answer to that. If the school you are studying at has a law school consider contacting the student legal clinic there. They should be able to give you a clear picture of your legal rights.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI was wondering if you could give me some advice. I live in a 3 bedroom apartment with 2 other roommates in Toronto. The 3 of us moved into the apartment in December of last year. One of my roommates has let me know today that she can no longer afford our rent and that she is starting to look around for a cheaper room in another shared housing situation. Ideally, she is looking to move Sept 1st (which would be enough time for me personally in order to find a new roommate), but she says if she found something she especially likes for an August 1st move-in, she would take it and forfeit her last month's rent that she paid our landlord in advance when we first moved.
Is there a minimum amount of notice that she needs to give our landlord? We do not have a written lease, but I understand that under the RTA that a lease can also be non-written or "implied" if there is prove that you have been paying rent each month. I was always under the assumption that 2 months notice (or 60 days) is customary. (as of today it would be 54 days notice).
Since I've agreed to pay our landlord one cheque each month for the 3 of us (and my other 2 roommates e-transfer me their individual amounts), I also now want to be cautious so that I'm not on the hook (so to speak) for anything personally. Moving forward, I think I will have the new person sign a sublet/roommate agreement with me to avoid awkward and unclear situations like this again.
Also, the 3 of us original roommates each had to go through an application process when we first moved in (ie. referral checks and we had to provide a statement from our bank indicating that we've never bounced any cheques). If my remaining roommate and I find someone else who we would like take our departing roommate's place for Sept 1st, are we obligated to get our landlord's consent on this person as well, or is it enough that we 'ok' the new person and take responsibility for rent payment as we've been doing to date?
Thank you so much for your expert help!
Hi Debby: The first question to ask is whether you and your roommates are co-tenants or whether you are the sole tenant and what you thought were your co-tenants are in reality just occupants. If I had to guess, based on the facts provided, I would say that you are three co-tenants given the application process you went through and the LMR paid by each of you.
DeleteOnce you get to there being 3 co-tenants, you look at the term of the tenancy. Without a signed lease setting out a fixed term, the presumption will be that you are on a month to month tenancy. This means that you may terminate the tenancy on 60 days written notice to the end of a term. This means that the end date of the tenancy as indicated in the notice must be the last day of the month (presuming that the monthly term starts on the first with rent due that day). The point is that you can not give 60 days notice with the last day being during the monthly term---it absolutely must be the last day of the monthly term in order to be legal.
Having determined these issues, the question then becomes what position your landlord takes with respect to one tenant leaving. Does he take the position that the entire tenancy is terminated? Or, does he take the position that the tenancy can not be terminated without the written notice of the other two tenants as well (and hence all three remain liable for the ongoing rent)? Unfortunately, the law is not entirely clear on what happens when a co-tenant leaves. I could go over the various legal arguments with you but in the end you still would not have clarity.
So, how to proceed? You should likely do what most people do when dealing with reasonable people. Negotiate a mutually satisfactory outcome. To do that you need to figure out what you want to do. You could decide to also terminate the tenancy and say to your co-tenant roommate that the entire tenancy should be terminated and that you all need to sign a Notice to Terminate in Form N9 and give a proper 60 day notice--and hence be liable for all of the rent to the end of the term.
DeleteIf you want to stay, and it appears that you do, then you may not want to antagonize your landlord with a squabble with your roommate. Perhaps you approach the landlord as a group and indicate that one of you is leaving and that you intend to replace her with another roommate. That could, in theory, be the end of it. You would have the right to move in any roommate that you want without the landlord's consent or agreement as such a move would not legally constitute a sub-let or assignment that would require the landlord's consent. It is at this stage, that you start to think about "legal rights" and doing the "right thing". This is where you start balancing the interests of the landlord, your roommate and yourself. Your landlord may want to maintain more control over who is in his building and therefore may ask for a full application even though his legal right to do so is constrained. Maybe if he gets that information he won't be so concerned about whether the tenancy as a whole terminates or whether this is an exercise of amending an existing lease and swapping out one tenant for another. The permutations are many.
Is your roommate being fair to you on the technical days of notice? Well, she could technically insist that the entire tenancy be terminated--or make things so difficult with the landlord that the landlord will insist that you all get out--leading to fight at the LTB. You know your roommate is having money problems. What can you do to make this a little easier without counting every penny. Peace and harmony with a landlord is worth quite a bit! Much will likely turn on how quickly you can find a new roommate. Perhaps this is solved with good luck in finding a new person. However, I think it is only fair if your roommate commits to a move out date so you can try to find a replacement by that date. The goal is obviously to make the move out and replacement a wash--meaning your roommate pays for the time she stays in the unit and she gets her LMR back which is replaced by an LMR from the new person. Whether that works out fairly or not just depends on the luck in moving out and replacing. If your roommate does not behave reasonably and takes advantage then you may consider suing her in small claims court. In considering that option you would analyze the legal positions in relation to the tenancy and then the legal relationship amongst the co-tenants (i.e. what is your deal?). What would have been contemplated as a fair set of ground rules should one of you decide to move out? Clearly you can't force people to stay with you and pay indefinitely. As well, co-tenants can't just abandon their co-tenants and expect them to meet all of the obligations of the tenancy. A co-tenancy agreement would be fantastic. Absent that, reasonableness will govern the day.
Hope that helps you out a bit.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteThank you for this incredibly useful and accessible resource, I feel so lucky to have found it. I hope you can help me out; my question is similar to the one posted by Brooke in May 2014, above.
I'm one of four roommates sharing a house in Toronto; we have all signed the lease. One of us has lived here for six years, the rest of us between two and four years, always on annual leases, August-to-August. In previous years there has been some switching in and switching out of the group, but our landlady has not raised the rent for the past several years, and there has been no change in tenants for the last two years.
One of my roommates just got married. We let our landlady know that she would be moving out at the end of August and that we had found someone to replace her beginning in September, at which point it was time to renew the lease.
Last week our landlady emailed the three of us remaining to say that because we had one new person on the lease it was effectively an entirely new lease, and that therefore beginning in September, we should expect to pay 7% more in rent, and that she was adding a few terms relating to responsibilities (we are very good tenants, but the house is old and not in the best repair.) Because this is a "new lease" she says that she is not bound by the rent-increase maximum regulations, and evidently she believes that she is not bound to give us at least 90 days notice of the increase. I'd like to know if, in your opinion, either of these conditions apply.
As a side note, this winter we discovered that we had bedbugs, which was an absolute nightmare. We worked diligently to deal with the problem as quickly as we could. Again, we are pretty responsible about cleanliness, but we live in a duplex, and there's no way to know where they came from. The landlady was very difficult about allowing us to get treatment (she said maybe we just had dry skin). In the end, we paid the fee-- over $3000-- and she paid nothing. We all missed days of work, and had to spend a few days out of the house (the bug exterminators had to shut off our gas line, so we had no heat, and in the process they discovered a gas leak in our water heater and our stove, which in turn both had to be replaced, so we were without those appliances for a couple days too.) I can't figure out whether we could legally try to get some compensation. Any advice would be most welcome and appreciated.
Thanks again for your time!!
Rose, Toronto
Dear Michael Thiele,
ReplyDeleteFirstly just wanted to say thank you for creating this helpful site. I am hoping that you could give me some advice to pass onto my daughter. My daughter, Sandy needed to get an apartment in London, Ontario so that she could attend a PSW course in college. After a few turn downs (first time renting and being on OSAP), her boyfriend suggested that it would be better to have his name on the application to. Which worked she got a one bedroom apartment and they both signed the lease. The boyfriend but down $600 for last month rent (which was to repay a debit he owed her) but was never going to move in. Sandy has been there since May 10, 2015 paying the rent, hydro and internet all herself. But now she broke up with him and he wants to screw her over anyway he can. Sandy spoke to the landlord who said the ex boyfriend will have to go in and sign off of the lease. However he refuses to sign off, and now wants her out. Is there a way of getting him off of the lease, so that she can stay in the apartment and finish school? And if she found another apartment could she sign off, or would the ex have to agree to that as well?
thank you for your time and for any advise you may give in the matter.
kim
Hello, would just like to say thank you for starting this great site. Wishing I found it before my daughter Sandy, situation though as it has alot of useful tips. But anyways my daughter needed an apartment for college, and found it hard to get one since it would be her first apartment and only receiving OSAP as income. So her boyfriend convince her it was a good idea to but him on the lease to. Well it worked she got a place on
ReplyDeleteMay 10, 2015. The boyfriend wasn't and hasn't moved in, but did pay $600 for last month rent (as he owed it to her). Now Sandy broke it off with him, he's mad and wants to screw her over anyway he can. Therefore he refuses to sign off of the lease, and wants her out of the apartment. She needs the place to continue school and is paying for the rent, hydro and internet. Is there anything she can do to remove him from the lease? And can he kick her out?
thank you for your time and for any suggestions you may give.
kim
Hello, I am living in a 4 bedroom garden home with 4 other roommates and me being the 5th living in the basement. I moved in last minute as I needed a place before university started. Apart from the primary lease holder/roommate, we all assumed rent was fairly split so we signed leases between each roommate and the primary lease holder. Later on, another roommate and I figured out that the primary lease holder/roommate is actually making profit, had overcharged us and possibly living for free. Is there anything I can do to get back the money he has overcharged us ?
ReplyDeleteDear Micheal
ReplyDelete1. I rent a 3 bedroom apartment and my name is on the lease with my girlfriend.
2. from time to time we rent the other 2 bedrooms long and short term
3. we recently rented one bedroom to a male for three months and signed a roommate agreement with him
4. the roommate agreed to prepay the thre three months rent in advance
5. after three weeks went by the roommate informed usb he got fired from his job and wanted to move out
6. the roommate asked us for his 2 months prepaid rent back
7. we told the roommate it was impossible to find a new roommate in one week remaining of the month for the next month but we might find a new roommate for the month after that and if we did we would return one month rent
8. the roommate got very argumentative with us in emails and text messages and argued that because he was sure we would get a new roommate that we should return him half of the two months prepaid rent back immediately
7. we argued back and forth about his for a few days and i tried to explain to this person that
a) we didn't have to return him any money because he prepaid for the room and he was now trying to make his problem of losing his job our problem (and it wasn't)
b) my partner and i were very busy running our business and I couldn't guarantee we would find a new roommate right away.
c) we had no guarantee we would even find a new roommate therefore we would not return any portion of his prepaid rent until we had a new roommate
8. this made him mad and we had huge fights over email until finally I said enough was enough and told him if he wanted to live in his room for two months it was his right but we were not going out of our way to find a new renter
8. he moved out and the room sat vacant (and paid for) for two months
9. after two months I rented the room and changed the lock
10. he never returned our keys
11. we had to attend the LTB because he made an application
12. I attended a mediation meeting and told the LTB that I was not the landlord and he was not a tenant and that i was the tenant and paid rent to the landlord and he was a roommate and paid rent to me therefore they had no jurisdiction over the matter
13. the roommate never attended the mediation meeting because the LTB sent his notice of the meeting to the wrong address
14. the mediation officer said he would bring this up in the rescheduled mediation meeting
15. in the next mediation meeting the roommate didn't show up but sent a paralegal
16. the paralegal wanted to get right into the roommates application but the mediation person stopped her and said he had to deal with the first issue of whether the roommate was a tenant or not
17. the confusion arose from the roommate sating in his application to the LTB that i was the landlord and he was the tenant
18. in this meeting i showed the parties my rent receipts for $1,200 for the apartment rental and the roommates rent receipt for $550 for the room payable to me. this established the the fact was i was the tenant and he was a roommate
19. the mediation officer asked the paralegal to call her client and suggest to him he withdraw the complaint
20. the paralegal also agreed her client should do the same
21. she called her client and he said he wanted a hearing and would not withdraw the complaint
22. the mediation person said he would recommend to the hearing adjudicator costs for vexatious and malicious complaint filed by the roommate
23. the paralegal said the roommate wanted $500 and would not withdraw the complaint
24. the mediation person scheduled a "5 minute" hearing because he said thats all it would take to dispose of this ... and also recommend to the LTB to award me costs
can you make any comments or recommendations?
Hi: There is no jurisdiction at the LTB and the file will indeed be dismissed. Given that the roommate had a paralegal and was informed of the jurisdictional issue it certainly makes sense to argue for costs---i.e. waste of time. You should ask for costs for yourself and for Board costs.
DeleteThat being said, the roommate has another avenue. The basis of your win at the LTB is that the Board lacks jurisdiction. The roommate therefore has legal recourse to the Small Claims Court and he could file a claim there against you. The Small Claims Court would have jurisdiction to hear the case. Would the roommate win? I can't give a firm answer on that either way. What does your roommate agreement say about termination (early termination). The roommate paid three months in advance but does that mean that he can't terminate earlier? Because he needs to termination and is moving out you likely have a duty to mitigate and re-rent and reduce the extent of the loss.
I'm not saying you would lose in the small claims court, but there is an argument to be made. That being said, proceeding with a claim in small claims is more significant than issuing a free application at the Landlord and Tenant Board. Query whether the tenant will spend the money and time to do it. It strikes me as odd that the roommate managed to not show up at the hearing and not have his case dismissed.
Good luck
Michael K. E. Thiele
This comment has been removed by the author.
ReplyDeleteThis comment has been removed by the author.
DeleteThis comment has been removed by the author.
DeleteHi Michael,
ReplyDeleteOn August 1st I moved into a two bedroom apt in a house with someone (I’ll call him John here) who has been living there for over a year. The landlord lives upstairs but I don’t even think he knows I exist. John pays the full rent including utilities directly to the landlord, on a month to basis, and I reimburse John for half on the first of the month. I now have to move out ASAP for personal reasons - how much notice am I required to provide? I am hoping that my payment for the month of September will suffice. John and I had no verbal or written agreement concerning notice.
Your advice would be greatly appreciated.
Hi: You are not a tenant under the RTA based on these facts. Hence, your relationship with John is covered by your contract. Absent express terms to give a specific amount of notice you may indeed be able to simply move out on short to no notice. The safest bet, usually, is to give reasonable notice--which I think is any where from 30 to 60 days for monthly rentals--though less may indeed be reasonable if there are no agreed terms and the circumstances of the relationship suggest that notice is not a big deal for the actual tenant.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI work at an agency that supports people with disabilities with supported housing options. The agency currently rents a 2 bedroom apartment and staff use one bedroom as an office and a supported individual lives in the apartment and uses the other bedroom. They have access to staff for overnight monitoring, meal prep and daily living supports. To assist this person who is quite vulnerable to be safe we have stated that no guests are allowed in the apartment. This also allows staff to feel safe knowing who is in the apartment. (There were many other models we tried to support this person in that broke down because of "friends" coming over and taking advantage of the person financially, doing illegal activity and creating a nuisance for staff who did not feel safe working in that environment.) Currently the Agency is the only party named on the lease and the supported person pays their portion of the rent to the Agency. The supported person is challenging the Agency on the apartment rules and doesn't agree that we have a right to enforce the no guests rule. Do we have any right to say who can and can't be in the apartment? So far when we have asked people to leave they have complied for the most part but the current "friends" the supported person has may challenge us more and we are anticipating resistance at which point we figure we would ask the police to partner with us to ask them to leave.
Thanks for any information you can provide to help us create and maintain a safe, structured environment for the supported person and a safe work environment for staff.
Hi: Depending on one's perspective, the RTA may be considered as woefully inadequate in dealing with the kinds of situations you are describing. Presuming a benevolent support agency the types of conditions being placed on the tenant are recognized as beneficial to the tenant. Unfortunately, not all support agencies are determined ultimately to be "benevolent". The argument against allowing a support agency to control a premises and hence the life of a supported person/tenant is that until determined otherwise every person is deemed to be competent and able to look after themselves. If a person is "competent" with respect to personal care and with respect to property then that person has the right to exercise their own choices even if those choices may be poor ones (depending on one's perspective).
DeleteIf your supported individual is competent, in the eyes of the law, then he or she is in a position to make choices. Unfortunately, to the extent that those choices are bad ones it may require a support agency to withdraw services which may lead to a further decline in the supported individual. Of course this is a wholly unsatisfactory way of proceeding but it seems to me to be the way the law unfolds.
The way you have structured your relationship with the supported person is definitely interesting. Being a support agency in possession of a rental unit and then having a supported person there with you is an interesting model. I wonder whether you are covered by the RTA at all and at the same time I wonder if you are not a Care Home as defined under the RTA. Certainly you appear to provide the type of services that a Carehome provides and hence part IX of the RTA may apply. If this is the case the extent of your responsibilities is much broader than you may realize and there may be a whole level of licensing and legal responsibilities that have to be complied with.
I can't say much more without asking dozens of more questions. I think your situation is likely very complicated and that ultimately you need to consult with your corporate counsel to properly identify the nature of your relationship with the supported individual.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteYour blog has proven to be an excellent source for a situation I am dealing with at the moment. I am a tenant and fall under category number two. I had a couple questions for you regarding the situation I am in.
My roommate moved in mid November and though she did sign a sublet agreement she never asked for a copy and I am fairly certain I misplaced mine. She transfers me money each month for rent and she did pay last month's rent when she moved in, however nothing is specified as to what the money is for when she makes the payments to me.
Over the last few months I have experienced theft. She has entered my room on several occasions without my permission and taken articles of clothing. The first time I noticed this I asked her nicely if she had seen the missing garments and she denied it. I didn't want to make it a big deal and let it slide the first time. The other night I found a picture that I saw on her Facebook of her wearing a top of mine and I also took a picture of it on her bathroom floor the next day. After that I decided to send her an email saying she has 20 days to vacate the unit and after that I would be changing the locks. I stated that should any illegal activity, damages, disturbance or harassment occur during those 20 days she would be evicted immediately. Am I allowed to follow through on that statement?
She agreed but then asked for her last month's rent back. Out of kindness I have been paying out Internet and hydro the whole year. She has also cost me money to have to put a lock on my door by a Locksmith and dry cleaning for clothes, as most of the garments have been found in malodorous or damaged condition. If she takes me to court if I don't pay her that money what is your opinion on what would occur? And what is the best way I should respond to her email for the time being?
Hi: I understand from your comment that you are the tenant and she is only a roommate or boarder. You used the word "sublet" when I think you simply mean "roommate agreement" as she can't be subletting from you (by definition) if you are still living in the unit.
DeleteThe theft you describe, finding things on facebook, I think are all good reasons to terminate your relationship with her. I think it would be entirely reasonable to follow through on an immediate eviction for the serious things you mention. You should not get carried away by minor nuisances.
As for the last month's rent. I see this money as an amount that you are holding against what she owes you. It is not a last month's rent as under the Residential Tenancies Act. You can use that money for what she owes you. Am I right to presume that the locksmith, drycleaning, internet and hydro (her portions) far exceed her "deposit". If so, I don't see any real risk for you in a small claims court action. If she sues you, you would just counterclaim against her for what she owes you.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteMy son will be renting a room in a 4 bedroom house for school. We challenged the landlord on the security deposit and on the request that the 4 independent tenants be responsible for shoveling the driveway and mowing the lawn. She then suggested that we change the agreement to a roommate agreement from a tenant agreement. I don't understand how this would make a security deposit okay.... could you please help me understand?
Hi Carrie: Changing the title of the document does not change the law that applies. If the renting relationship is as between landlord and tenant then the Residential Tenancies Act applies regardless of what the landlord wants to call the agreement. Perhaps in your situation the landlord has decided that you are too much trouble and is seeking to make your son a roommate of the other actual tenants--hence a roommate agreement. If this is what is happening then your son will have no rights as a tenant and no direct relationship with the landlord. He will effectively become a roommate of the actual tenants who would then have a degree of control over your son.
DeleteIf your son enters into a roommate relationship with the actual tenants they can demand payment of whatever they want--security deposit, prepaid rent etc.. They can do this because the Residential Tenancies Act would not apply to your son. Your son would not be paying anything directly to the landlord.
If the suggested "roommate" agreement still results in your son paying rent to the landlord then it is likely that the landlord's characterization of the arrangement is a fiction that won't be supported on close analysis. Be cautious in dealing with a landlord or is trying to manipulate the system in this way.
Good luck
Michael K. E. Thiele
Hi Michael,
ReplyDeleteThank you for your time in providing such helpful advice to both sides of the Landlord/Tenant arrangement. I find the questions and responses extremely useful. I'd like your thoughts on a scenario that I'm currently facing with my tenants.
I have a 3 bedroom unit had have entered into a Lease agreement with all 3 occupants. That is, they have signed one lease which names all three of them as tenants and stipulates that they are jointly and severally liable for all terms and obligations under the lease. In September the 1 year lease expired and the tenants chose to sign a new to month-to-month agreement with a provision for 60 days notice in order to terminate the agreement. There is now trouble in paradise. 2 of the tenants have asked me to evict the 3rd. Obviously, it has been made clear to them that aside from not having any cause to begin eviction proceedings, that they are treated as 1 entity or group. They are now deciding who will be leaving. They have all been good tenants and I have no preference---the issues between them are unrelated to the property . I am looking for advice on how to proceed. If they agree on who will leave, I assume I need to comple a form N11 to terminate the current agreement with the 3 of them and will then be in a position to legally enter into a new lease agreement with the remaining party, correct? I guess my confusion centres around them giving me notice. That is, if the group of 2 decides they will leave and let the 3rd person stay on, do they all provide notice (let's say Dec. 1) to agree to vacate by Feb. 1? And then I enter into a new agreement with the 3rd person or do we simply all agree to terminate the current arrangement, with the group of 2 letting me know in writing when they will vacate and I continue on with the 3rd person with a new agreement. Any advice on next steps working within the legal framework is greatly appreciated.
Thx in advance for your time,
M.A.
Hello Michael this Blog is a very useful resource thank you for putting it up
ReplyDeleteMy Daughter is away at University and is in scenario 1. She her boyfriend and 3 other tenants are sharing a house. One of the other tenants has turned out to be the roommate from hell. He is not paying his portion of utilities, is constantly being verbally abusive and physically intimidating to my daughter and the other tenants. As well he eats their food and uses their dishes etc as he has not brought any of his own things for the kitchen. She no longer feels safe in the house She and the other tenants apart from the one tenant are avoiding the common areas of the house.
She her boyfriend and the other roommates actually went to the police station because they are feeling so intimidated but until he is physically violent there is nothing they can do. She cannot continue in this situation. Their landlord tells them they can notify him they are breaking the lease and unless the one remaining tenant can pay the rent on the entire house and he stays. The 4 tenants who get along can then sign a new lease and stay while getting rid of the roommate causing the trouble. Is this a good solution? This does mean she has to put up with him for at least another 60 days. Can she get out of the lease before it ends in July due to her situation?
Hi: The landlord is clearly trying to by helpful. He could simply say it isn't his problem and do nothing. The landlord's proposal, if it works, is perfectly fine. What needs to be understood is that there isn't a specific legal course of action that is to be used in situations like this. You have to proceed and try different things to solve the problem. I presume that telling the tenant that he needs to get out asap hasn't worked? Changing the locks is an options, putting his stuff on the curb or in storage while having an officer present to keep the peace is something to consider. The landlord's route is an option. All of these lead to a certain level of conflict of course and there is always a risk that this roommate becomes unhinged. While in a fixed term lease there isn't much option for terminating the tenancy--the landlord's proposal is likely the best for terminating. Otherwise the Landlord and Tenant Board would tell you that subletting or assignment is an option--however, that is not realistic given the reason for trying to end the tenancy. You could just move your daughter out of the place, pack up her stuff and simply move out and put it all on the roommate. Stop paying rent and trigger an eviction process. There will be expense, potentially significant expense if there is damage in the rental unit that occurs while your daughter is out of possession. You could move out with the intention of moving back or simply moving on. You could do this while telling the landlord your intentions or not. If you are out of possession the landlord has no recourse against your daughter at the LTB when he starts eviction proceedings. You will want to try to trigger eviction and termination proceedings so that your legal exposure is limited. While you are doing this collect evidence and proof of the conflict and turmoil caused by this tenant. He should be told to get out--in writing and that if he refuses to move out that legal action will be taken. Perhaps have a lawyer write him a letter as well.
DeleteUltimately, the status quo does not have to remain. You can take steps and there are choices to be made. What choices you make are better informed in meeting with a lawyer familiar with Landlord and Tenant Law. The choices all come with consequences, some of which are not predictable and yes there is the possibility of significant expense. However, if the status quo is simply unacceptable then you need to move ahead--almost to the extent of consequences be damned. Retain a lawyer to take you through the steps, it will be a comfort to have counsel on hand to write to the roommate, deal with the landlord, and other co-tenants. You will be able to tell all parties that you are taking the advice of counsel, are following his/her recommendations and that anyone who has a problem is invited to speak with your lawyer. While this will cost some money in legal fees you should find that the stress of the situation is greatly relieved if you let your lawyer do the talking.
Good luck. Your daughter's situation is another example of why it would be useful for the law to provide a mechanism to address serious roommate conflicts.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI had a fairly new friend offer to house sit for me and then asked if he could rent a room and stay. I thought about it and found nothing wrong with this. He is occupying my guest 'room' (which is the open basement with a bed, dresser and night tables). He has access to the kitchen and all household items (tv, internet, garden) and has helped with keeping the house and kitchen clean etc changed lightbulbs and such things. He has used the kitchen for canning and making wine and really likes living with me.
To avoid complications and to keep things on the table, is there anything we should discuss or write up? I pay $2200 and ask $400 from him. He is not working and has asked if I have work for him to do. For the most part he has kept himeself too busy to help when I have asked of him and originally I said that I would pay him $250 a week to assist me in what I needed done from day to day. The last week he has been busy and unable tohelp me. I am thinking that he may just be a room mate until I decide not.
Do you see any red flags here that I should be aware of? I like to be forward thinking on this.
Thanks Michael
Hi Michael,
ReplyDeleteThank you for taking the time to read and help all reaching out to you. My situation is a bit particular. My roommate and I both signed the same lease agreement but payment on the lease was divided in half for each party so I believe I fall under case number 3. I have been living with my roommate for two months and it isn't working out due to different lifestyles. My roommate thinks I am too loud yet I watch tv with volume from 9 to 15 (60 being maximum volume) and reduce the volume to one more decibel past 12:30. I go to bed at 2am the latest and usually am in bed by 11-12am on week nights. Visitors and overnight visitors are kept at a maximum of 3x/week and only come on the week end. Noise was made excessive once past 3am and was remedied after my roommate confronted me about it. Twice I have returned home from a night out around 2 with two friends and the night ended having a bite to eat in the common area then heading to bed. My roommate has a problem with my having reasonable enjoyment and thinks even talking with friends is too loud around 10am. Things blew up when she accused me of going in her closet when I dropped off some sweets for her in her room. My roommate goes to bed around 3-4:30am on weeknights, will not come out even for a bathroom break if anyone else is over making it very uncomfortable for friends and myself to feel okay being here, will not share food nor participate in chores besides her own quarters despite me specifying this is a shared accommodation in the roommate interview, and will sleep until 6-7pm on week ends. She is not violating anything in the lease agreement but misrepresented her when I interviewed her as a potential roommate. We have agreed this arrangement is not working out but she is not willing to leave anytime soon as legally she rightfully can stay. I have spoken about it to my landlord and he would be okay with me taking over the lease but there is no ground for eviction whether at fault or no fault. This living arrangement is putting a strain in my mental health as this level anxiety is bringing me back to a hard time in my past but I am not willing to compromise this house; utility accounts are under my name and I have invested a lot in this house for the past 2 years. I feel horrible posting for solutions to legally rid a roommate but I cannot keep on listening to music or watching tv through headphones, especially if within reasonable hours. I hope you can be of help.
Hello,
ReplyDeleteThanks for the post. I have 3 months left on my lease, and my roommate moved out. My landlords say that I cannot find a roommate by posting on Craigslist or anything. They said I could get one if it were a family or friend (I don't have either). They said that they are "not in a position to officially approve of anyone else staying with you for a duration of 3 months. Something like that would be considered a short term rental and is against the condo bylaws, rules and regulations." This seems unreasonable to me. Could you shine some light on the subject for me? Thank you so much in advance!!
Hi Michael,
ReplyDeleteI have a quick question regarding my responsibilities. I am the tenant of my house that I rent with my boyfriend and we let a friend move into a spare room. He has no written agreement and has always paid in cash. He has made numerous poor choices while living with us including doing illegal drugs in our home following us explicitly stating that would not be tolerated. He is now moving out and has requested receipts for the 2015 year. Not only do I not have any receipts but I was hoping not to claim his rent as that had initially been our agreement when he moved in. Do I have to provide him receipts or can I simply say I do not have them and he did not request them so I cannot provide them.
Thanks,
Jen
Hi Michael
ReplyDeleteThank you for answering questions in an understandable method.
My question involves living with landlord's children. My child is considering to move in with 3 other girls into a house for next year (university) that is an investment property between 4 people (therefore 4 landlords). Of the 4 landlords, 2 of them will have children living in the house as well. There are 6 rooms.
We insisted that the two daughters have to sign a lease as well so that everyone living in the house is following the same rules. We were afraid that the 4 "tenants" would have to be responsible for any and all damages, even if it was one of the two daughters that caused the damage. Are we correct in this, or are the two daughters exempt?
Secondly, if the girls each sign their own lease for their own rooms, (only one person in a room), and the landlord has a "joint and several" statement in the lease, the "joint and several" would only apply to whoever is in their room, namely themselves, correct? That does not make them liable for other tenant's rent correct?
thanks for any thoughts.
W
Hi: An interesting situation. You will likely find that the law gets in the way of what you want to do and your attempts to sign agreements to get around the law will be voided by the very law you are trying to get around. What a mouthful!
DeleteConsider it this way. All residential tenancies are presumptively covered by the Residential Tenancies Act. Hence, if all of the occupants sign a lease with the landlord(s) then presumptively every occupant has the rights and obligations of a tenant under the Residential Tenancies Act and the owners as landlords, presumptively have the rights and obligations of landlords. This is what signing the lease intends and if this is what everyone wants you would assume that this would be what governs the relationship.
That assumption would be wrong.
The Residential Tenancies Act is drafted in such a way that agreements that seek to skirt the law are deemed void. You see that being stated explicitly in section 4 of the Residential Tenancies Act. The RTA is going to govern regardless of what the parties may try to agree to.
The Residential Tenancies Act determines the scope of the authority of the RTA. It explicitly sets out what relationships are covered, which relationships are partially covered, and which relationships are entirely exempted from the Residential Tenancies Act. Trying to take a relationship out of coverage by drafting a clever document will be deemed void. Trying to get covered will similarly be deemed void as any agreement that contravenes the RTA is deemed void. You can not, as parties to the agreement, confer jurisdiction on the Landlord and Tenant Board (LTB). The LTB draws its power from the statute (RTA), and if the power is not in the statute then it simply has no jurisdiction.
In that context lets look at the housing situation you are contemplating. Two landlords will have their children living in a house with up to four other people who are not also landlord or the children of landlords. Let us assume that everyone signs the same lease that intends to put everyone on the same footing conferring rights and obligations under the RTA. Does the RTA apply?
Presumptively yes, but very likely no it does not apply. Take a look at section 5(i) RTA. That section provides that the RTA does not apply with respect to: ) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located.
I think you are describing a living situation that falls squarely into the circumstances contemplated by section 5(i). If so, regardless of what you might agree to, the RTA will not apply to the lease signed by the occupants.
Why does this matter? It matters if the relationships breakdown and the occupants start fighting and it gets nasty. If everything remains friendly, everyone is decent, decisions are made respectfully, consensus is reached and everyone behaves honourably then it doesn't matter.
DeleteIn the event of a fight the children of the landlords will have an advantage. The protections that tenants take from the Residential Tenancies Act will not be available to the non-landlord children. While not without consequences, in a non-RTA covered relationship the landlord can act more unilaterally. There is no security of tenure for the non-RTA covered tenants and these tenants could find themselves evicted without due process. The application and complaints process under the RTA will not apply---no clear recourse for non-repair issues, harassment issues, or denial of quiet enjoyment.
If the RTA does not apply then the entire relationship will be governed by contract. How well each party is protected depends on the wording of the contract. Breaches of the contract can be taken up in Court--usually the small claims court. If a landlord behaves unreasonable then the landlord can be sued. If the tenants behave unreasonably then they can be sued. The Court process will unfold over time and a judgment will be rendered one way or another. Nothing will be terribly timely in relation to the interactions in the rental unit. Court cases take a very long time.
The next big issue. If you can get the RTA to apply to the relationship (doubtful) then that settles the relationship between the occupants/tenants and the landlords. The next problem is the relationship between the roommates. The RTA has never governed the relationship between roommates. This can be a nightmare if there is a terribly unreasonable person in the bunch or if there are serious personality conflicts.
The relationships between roommates are considered contractual. It is ideal if the roommates sign a roommate agreement setting out the terms of the relationship. Comprehensive agreements will deal with everything from tidying/cleaning, to splitting rent, sharing food, parties, guests, over-night guests, damages, manner and method of rent payment, use of space, parking, utilities, internet, garbage/recycling, etc.. And there is an awful lot of etc.. Of course, the most comprehensive of agreements is not going to solve interpersonal conflict and fighting. In that case, the agreement will be helpful to a Judge who is sorting out the lawsuits.
"Joint and Several". Generally speaking, leases impose all of the responsibilities of a tenancy on all of the tenants individually. This means that the landlords can chase any one tenant for all of the rent, all of the damages, and any other costs. The landlord(s) do not have to spread the chasing out over the entire group. This is not the landlords problem.
If a tenant finds that they are paying everything because the landlord has targeted them as the person who must pay, then that person can sue the roommate(s) for contribution and/or indemnity. The tenant who pays can sue the tenants who haven't paid. If the landlord makes a tenant who did not cause the damage pay for the damage that tenant can sue the roommate who did cause the damage for indemnity. Of course, evidence and proof will matter.
Hope that begins to clarify things for you. I think you will find some of what is said here surprising and not in keeping with what you presumed was the case. The law in these situations is actually not straightforward and you should consider, before signing anything, to consult with a lawyer or paralegal familiar with Landlord and Tenant law. What you are contemplating doing is not unusual nor is there anything inherently wrong with it. However, if the wheels do fall off the wagon it will be good to know where you stand (before it happens) than after it has happened to you.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael
ReplyDeleteThanks for the explanation.
Basically, the daughters aren't really tenants, and even if they sign the contract, they aren't under the RTA.
Also, even though the girls are signing individual leases for their own rooms (their rooms defined in the Agreement as "Leased Premises"), they are still "joint and several" with each other? (You mentioned "roommates"....I take that as someone who is sharing the same room...not sharing a house with multiple rooms. Here, the girls are one to a room, with individual leases...with a joint and several clause.)
thanks again for any input.
w
Hi: I appreciate that you are describing a rooming house situation with multiple leases with the idea being that the rooms occupied by the non-owner daughters are covered by the individual RTA leases. This does not work though. All of the girls are sharing a kitchen and/or bathroom with each other. I don't see the RTA applying in any circumstance here.
DeleteThe joint and several liability means that each individual signatory to the lease is responsible for the entirety of all aspects of the lease (rent, damage, etc.) even damage or non-payment of rent by other occupants.
While the unit may not be covered by the RTA, you can read the lease as creating contractual rights outside of the RTA. Hence the lease would not be a meaningless document. It would certainly have legal significance in the Small Claims Court.
While the "landlord" can sue any one, some, or all of the tenants, for any rent, damage, or loss caused by any one, some or all of the tenants (and hence favour one or more tenants by choosing not to sue them), the tenants who are sued have the right to sue the tenants who were not sued by the landlord and they can seek contribution or indemnity for any part of the claim that the landlord wins.
Michael K. E. Thiele
www.ottawalawyers.com
thank you.
DeleteAwesome site! Thank you. We have taken in a young man who had several bad situations happen to him with the assumption he would find an apartment in town. We do his laundry, make his lunches his meals and give him a ride to work as he has no vehicle.he has total run of our home which we had no problems with until....his son comes over every second weekend and now we have no room for our own visiting family. I initially didnt charge until food bill went up but now it seems hes not tryimg at all to find place. Our mistake i know. Whats our options?
ReplyDeleteHi Gertie: For all tenant like relationships in Ontario we have to ask whether the Residential Tenancies Act applies. Because you share a bathroom and kitchen with him the Residential Tenancies Act does not apply. That usually leaves us with a relationship that is governed by contract. However, that doesn't sound like what you've got as there does not seem to be the slightest profit motive in your attempts to help this young man. In fact, his presence is likely costing you money.
DeleteOn the facts you have provided my view is that this young man is nothing more than a houseguest. As such you may ask him to leave at any time and you may exclude him from your home at any time. If you ask him to leave and you find it difficult to get him out you should call the police for assistance.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI'm beginning to worry as I believe I have been taken advantage of by my landlord because after doing some research it appears I am not protected by the Residential Tenancies Act since I shared a common kitchen and common area with my landlord.
To be as concise as possible, my landlord decided to evict me for no good reasons as far as I'm concerned(ie. not getting along dispute over shovelling snow etc.). In any case, he waited to tell me just after I had already paid for the rent (on top of my last month's already paid at beginning of lease). He also knew I had been called for a last minute business trip.
Since I didn't know how long my trip would last, and in order to keep my options open, I assumed I may not be able to return to take my belongings so I packed everything and cleaned my room as much as I could so that in the possible scenario that my trip lasted longer than the days given to vacate the premise, I would not have to ask too much out of a relative to handle any left over matters if any (ie. something was broken etc.).
While on my business trip, I gave the landlord by email a conditional offer that I could vacate sooner, and if he accepted my offer I could have the keys returned by way of proxy (relative) once everything was in order.
Instead he replied angrily and tried to find an excuse that I violated the security of his household assuming I did not have the keys in a safe place (which clearly was false and a bogus excuse in my opinion). As such he took it upon himself without warning me first, to change the locks and charge me for it, while not sending me the new keys (as far as I was concerned I was still a tenant since the agreement/contract gave 30 days noticed).
Furthermore, instead of giving me a response to my conditionnal offer, he entered my room without asking first (as written in our agreement), and claimed that it was in an "abysmal" state and charged me for it(ie. "dust on window sill" to name of few). I had forgotten to wash the bed sheets so he took it upon himself to do it and charge me 160$ for it without first asking me (or giving me an invoice), and again without ever first accepting my conditional offer. Had he accepted my offer, all left over matters such as the conditions of the premise could have been first discussed and I could have very well asked a proxy to do the laundry instead of him doing it.
Lastly, neither I nor a relative acting as proxy was ever able to access the property since my trip departure(even though he had my rent on top of my last month's). I was not able to get a relative to go pick up my bike forgotten there, and on his own terms my aunt was finally able to pick it up from the front entrance which clearly meant I was evicted.
In the end, he chose his own terms and decided to refund me 114$ deducting it from the 950$ (475$ for the rent and 475 for last month's). The only fair deductible in my opinion being the last utility bill.
Any idea what my rights are in this situation? What can be my course of action if it is not part of the RTA? How can I get my money back from the landlord?
Thank you in advance for any input.
Hi: I will not comment on the details of the back and forth between you and the landlord as it is a matter that really requires me to read the email messages and confirmation of how things were communicated. Generally speaking though, it does sound like you were taken advantage of; at least based on how you recount the facts. If your tenancy is exempt from the Residential Tenancies Act based on the shared kitchen exemption (section 5(I) RTA), then your legal recourse is to the Court. Given the amounts at issue you may consider a claim in the small claims court.
DeleteIf you do file a claim, it would be very helpful to write down an exceptionally concise timeline of what happened and when with references to the communication (email, text, letter, etc.) so that you can clearly show a judge what happened and when.
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Thank you Michael, very much appreciated your input. Looks like I may be forced to take it to small claims.
Deletehi michael
ReplyDeletei am living in apartment on sharing basis with friends. i give my rent to one of my friends and he gets the rent from others also and then he pays at his financial institution. i am confused about who should i ask for the rent receipts now.. should i go to apartment's office or what should i do???
any help would be appreciated...
thanks
Hi Jaspreet: You should check with your income tax preparer/accountant. I think that what normally happens is that all of the tenants share the one receipt--i.e. make a copy. You then each claim your portion of that receipt.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteCongratulations on your blog. Very useful . I have a question :
My wife and I are both in the lease. Payment is made automatically from my account. For various reasons I want to leave this apartment. How can I remove my name from this contract given that my wife does not want to sign?
Hi: I presume that the issue is that your wife and you are separating and your wife wishes to continue residing in the apartment and you do not. The manner in which joint tenants terminate their respective obligations under a lease is unclear in residential landlord and tenant law. Some argue that all joint tenants must sign a notice of termination failing which the lease is not terminated. The result, I think, is that tenants who want to leave are a hostage on the lease.
DeleteI have a preferred approach but confess that after 20 years of doing this that I have never had to follow through with it with a landlord. Perhaps this is why there is so little clarity on the issue as these disputes don't really ever get to Court.
My preferred course is for the joint tenant who wants to leave to serve a valid N9 (Notice of Termination) on the landlord. Hence, fill it out with a valid termination date. Give a copy to the landlord and to your co-tenant. My theory is that the tenancy terminates as of the termination date in the N9. If the co-tenant continues to occupy the premises after the termination date then I would argue that the co-tenant has become an unauthorized occupant of the rental unit. The landlord then has 60 days to evict, make a deal, or have a deemed tenancy put in place as between the unauthorized tenant and the landlord. In my view, your obligation as a joint tenant ceases as of the date of termination. I suppose, you could remain liable pending the removal of your co-tenant through LTB processes or until such time as your co-tenant is deemed a tenant under a new lease or deemed assignment.
Under the Residential Tenancies Act and at the Landlord and Tenant Board there is no way to force your co-tenant to sign anything respecting the lease. The best you are going to do is force the landlord to deal with your interest in the lease. Perhaps you can have the issues respecting your "matrimonial home" dealt with in family court. An adjudicator with the Landlord and Tenant Board has no jurisdiction to consider the separation issues between you and your wife.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Wow... what a wonderful site. Thank you Michael for your time!!! I have a quick question regarding my daughter. She signed a lease with a room mate she did not know back in September, 2015 for first year of school. They did not get along well and the room mate just came home one day with friends and moved out in January - no notice given. The lease is from August - August and they paid $450 each (both signed the lease). The landlord (property management employee) did not get any rent from room mate who left as she refused to pay for Jan, Feb, Mar, Apr. Now landlord (property management employee) notified my daughter that she is responsible to pay whole rent ($900) for May, and June ... July is last month and already paid. The landlord advised that she will be taking room mate that moved to court and when she wins the case, she will credit my daughter's account and she will not have to pay rent. Is this landlord trying to pull a fast one on my daughter. Why was it all right for the exiting room mate to not pay rent for Jan, Feb, Mar, Apr and now all of a sudden full rent is due in May and making my daughter (student) pay? This is in a unit in Brockville where apartments are not plentiful. My daughter does not want to move and has full intentions of staying, signing another lease and having another room mate assigned to her from this landlord for next year's classes. How responsible are we for this deadbeat room mate's lack of payment? Please advise.... Thanks so much!
ReplyDeleteHi Karen: This is a curious situation that you are describing. You indicate that a lease was signed with an unknown roommate starting September 2015 ending a year later. After the year ends that lease would proceed month to month--whether the landlord agreed or not--you do not have to sign another lease. Usually, when a single lease is signed with another person the two tenants become joint tenants. This means that both are responsible for the entirety of the obligations under the lease. Your daughter and the roommate are responsible to pay the total whole amount of the rent of $900---even though they split it equally.
DeleteWhen your daughter's roommate moved out I would have expected the landlord to chase your daughter for the whole $900---in which case your daughter would search for a new roommate to pay the other $450 and sue the roommate who just moved out for the rent lost while searching for a new roommate.
The fact that the landlord did not chase your daughter for the missing half rent suggests that there are two tenancies in the rental unit and that the landlord does not consider your daughter to have been a joint tenant with the roommate who left. Frankly, this is odd. Though I suppose that may have been the deal. Did the landlord introduce the roommate to your daughter---i.e. did the landlord put the deal together? Perhaps that is the explanation.
If the lease is a joint tenancy your daughter is liable for the entirety of the losses. If there are two separate leases (like a rooming house situation) then your daughter has no liability for the unpaid rent of the roommate. The landlord's demand now for two months rent, but not the earlier months is perplexing. I don't see how your daughter can be liable for the last two months without also being liable for all the earlier months.
Your expectation that the landlord will assign your daughter another roommate certainly speaks to the idea that there are separate leases within the rental unit (i.e. rooming house). If your expectation that the landlord will assign another tenant/roommate to your daughter is backed up in paperwork and reflects the landlord's expectation as well then there is no question in my mind that your daughter has zero responsibility for the unpaid rent of her former roommate.
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI am renting a room in a house with 4 different students. We all signed separate leases. I have been in the house for 3 years and have been on month to month for 2 years now. recently one of the roommates gave their 2 months notice.The landlord doe not want to find a new person to fill the spot so he has asked if we could all sign a 1 year lease all together. I really don't want to sign a new lease with everyone. If I don't by June 1st he has asked me to leave. What do I do?
Hi: Legally, your landlord may not just ask you to leave. Nothing you have said triggers any of the exemptions under the Residential Tenancies Act so I will presume that you are covered by the Residential Tenancies Act. That gives you security of tenure. You have the right to continue on a month to month basis until your tenancy is lawfully terminated. "Lawful termination" does not include the landlord simply asking you to leave. The landlord has to have grounds under the Residential Tenancies Act to terminate the tenancy.
DeleteIt makes perfect sense that you would not want to share the liability of a lease for the entire premises with unknown strangers. I wouldn't want to sign such a lease either given that the living arrangement would stay the same (rooming house like). You don't get anything extra for signing the kind of lease that the landlord wants.
Accordingly, I think you simply indicate to the landlord that you decline to sign a group lease and that you intend to continue to reside in the unit on a month to month basis. The landlord may be unhappy and this may trigger the landlord trying to find a legal basis to evict you (or perhaps to make one up). You will be given the opportunity to fight any notice that you receive. Make sure to document your position in emails to the landlord so that you can prove to the Landlord and Tenant Board what started the problems with the landlord.
Good luck to you.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteThank you for your informative post.
I have a question regarding scenario 1. If one co-tenant in a joint, month-to-month lease moves out and the remaining co-tenants find a replacement roommate without informing the landlord, is this unauthorised assignment?
Thank you in advance.
Hi: In short, I don't think that what you are describing is an assignment. It seems to me that the replacement roommate becomes only a roommate without status as a tenant unless that right is conferred in some other way. The co-tenant who left, without notice to the landlord, remains a tenant and continues to share liability for the unit (subject to claiming against the remaining tenant and roommate for any claims).
DeleteThe question would be easier to answer if you were asking about "subletting". The reason I say this is that we have a definition of "sub-letting" in section 2 of the RTA and a further expanded definition/explanation of what subletting is in section 2(2). In a subletting context it seems clear that for a sub-let to take place the existing tenant needs to vacate the rental unit. Without vacating there can be no sub-let.
We don't seem to have a definition of "assignment" in the RTA. Taking a look at Part VI (Assignment and Subletting) in the RTA we're not helped with a description of what it means to assign a tenancy. The best we have is a reference to the tenant: "transfers occupancy" of the rental unit in the unauthorized section of the RTA (s. 100). That is useful, except in the context where there are two joint tenants and one moves out and is replaced with a roommate. In these circumstances has the tenant transferred occupant of the rental unit? I don't think so as the tenant is/are the joint tenants (two or more people). In order for the tenants to transfer occupancy of the rental unit they would all need to move out (in my view)--which seems to be a consistent interpretation with the subletting definition.
I'm unaware of any caselaw on point so I think it fair to conclude that what you describe is not an assignment.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi, I have a rooming house with 7 rooms, 2 bathrooms and a kitchen( we do not live in the house). I have 2 brothers that live in the house and are causing trouble with the other people. Do i need to give them an evictin notice or can i just have them removed. We discussed that they would be gone by the 15th, they are still there and are refusing to move. I called the police to have them removed but the police will not remove because they say we fall under the RTA.. Do we? I need to have them gone ASAP, i am losing my other tenants because of those 2 trouble makers PLease help thank you
ReplyDeleteHi:
DeleteRooming houses are indeed covered in Ontario by the Residential Tenancies Act. Tenants in a rooming house have the same rights/obligations as tenants in other styles of rental units and landlords have the same duties under the RTA as well. Your reference to not living in the house is an important consideration in determining whether the RTA applies to this property or not as there are certain exemptions from the RTA in section 5 & 6. There are other exemptions but simply being a rooming house is not the basis for an exemption. In fact, the definition of rental unit at section 2 of the RTA specifically includes rooms in rooming houses.
To evict these roomers you will need to serve Notices of Termination selected based on the problems being caused by these roomers. If they then refuse to move you must apply to the Landlord and Tenant Board.
As it seems that you are having conversations with these tenants about terminating their tenancy consider bringing a Form N11 (Agreement to Terminate) with you when meeting with them. If you make a deal for them to go this form can be signed and any termination date can be selected. The Form N11 is enforceable through the Landlord and Tenant Board--somewhat quicker than other Notices of Termination.
Good luck
Michael Thiele
www.ottawalawyers.com
Good morning, Michael;
ReplyDeleteMy friend has lived in her apartment (which is the upper part of a bigger house) for 2 years, and has been renting out her 2 rooms ever since she moved in. She had not only advised the property manager - as opposed to the landlord - of this, but as also been sending him emails confirming who would be renting out the rooms, which he never responds to. She sends him maintenance requests for current issues and issues that were present prior to her moving in. He's been very "laissez-faire" about the whole thing, only sending a handyman to fix a few of the problems. She had sent him a compiled list recently, in which he turns around stating that he and the landlord were unaware she was renting out the rooms, and that (and I quote) "According to Ontario legislation you are required to ask for permission to enter in leasing contracts – effectively sublets, you do not control the property in this respect – subletting and roommates are two very different legal entities." He goes on further to write that "given legislation regarding subletting, you have not followed the law which could be deemed as a dishonest or illegal act, permission must be gained to allow for subletting". I have 2 questions regarding this: 1- is he allowed to use the fact that they are renters in the home as an excuse to not maintain the property? 2- my friend is not subletting; she rents out rooms on a short term basis (she's even renting a room to me until I move into my house in September). I know the Residential Tenancies Act has stipulations regarding subletting and assigning, but what does legislation say regarding boarders and the responsibility the tenant has on them? Is there any direct conditions about boarder maintenance?
Hi: I'll go directly to your questions. The landlord is required to maintain the rental unit and the residential complex. His maintenance obligations are not conditional and the presence of roommates or boarders does not excuse his obligations. Your friend may indeed enforce her rights to have the property maintained through a T6 application to the Board or even by calling in property standards from the City.
DeleteWith respect to your second question and statement. You are correct, this is not subletting. Take a look at the definition of subletting in section 2(2) of the Residential Tenancies Act. A sub-let requires the tenant to move out.
There isn't much else about boarders/roommates in the RTA. As occupants your friend (the actual tenant) is responsible and liable for everything they do on the premises--hence she is on the hook to the landlord for any damage, behaviour of the occupants including the behaviour of the guests of the occupants. Beyond that, you will find some restriction on renting out to make a profit (i.e. charging roomers more than the actual lease costs).
With respect to "direct conditions about boarder maintenance" there is nothing that I am aware of. The boarder's status is that of occupant. Occupants are protected from harassment by the landlord under the RTA but the residential premises (i.e. rental unit) must be maintained as part of the landlords obligations to the tenant.
Hope this helps
Michael K. E. Thiele
www.ottawalawyers.com
Thank you so much!! We did our own research with the RTA and Landlord and Tenant Board, but I wanted to get an actual lawyer's opinion on the matter - much appreciated!!!
DeleteHello. My daughter is a 21 year old international student who moved to Ontario 4 weeks ago from the UK. Due to an oversight with the university she was not allocated a room in halls. She went through a letting agent and found a room with 4 Canadian students who were a group of friends already living in the property. Her name was added to an existing agreement where all five were named individually and the agreement is for 8 months. Two previous persons were also going to take the room at one stage on another but were replaced as scribblings out on contract. Arrangements were made to rent furniture for her room and she moved in as planned to find that the other girls were moving in a few days after her. Then the problems started as she was asked for several hundred dollars towards furniture etc that they had bought together which was totally unexpected and not budgeted for. She discussed this with them and and agreed verbally on paying them 150 dollars a term towards bills and household items like cleaning products and use of the toaster etc. All was fine until homecoming and one of the girls started a row accusing my daughter of owing 600 dollars so that she could use the sofa and words were spoken in front of her guests. My daughter was upset and embarrassed but apologised for her part in the disagreement. The other girl did not and now the situation is once again very awkward and is not going to alter as there appears to be an underlying resentment about the furniture money from the girls. She is very unhappy and wants to move due to the unpleasantness and feels she is being unreasonably treated with the fragile bond that existed with the other girls now irretrievably broken. How do we give notice so that we are act fairly in this situation as it is likely that she will move into halls as students have since dropped out of uni? Thank you for your help.
ReplyDeleteHi UKmom: Thank you for writing. I'm sorry that your daughter is having a bad time of it. As an international student it must be particularly frustrating. I remember my own time at the University of Glasgow, as an international student, and we were very well taken of.
DeleteThe key to your question is this "existing" agreement where all give were named individually. I can't answer much without seeing that agreement or having a better understanding of what that agreement is.
The analysis starts with determining whether the Residential Tenancies Act applies. If your daughter signed an agreement with roommates--i.e. one of the existing roommates is the legal tenant and everyone signs a roommate agreement then the Residential Tenancies Act does not apply to your daughter. Whether it applies or not is important to know what rules apply to the relationship. Yes, or no, is not about good or bad--it's just what rules apply.
Alternatively, your daughter might be living in a rooming house. Individually named tenants might mean that each tenant is responsible for rent to the landlord--for their room only. The other space in the house becomes common shared space and deals about furniture, contribution etc., are common enough.
A further possibility is that your daughter is one tenant on a single lease of a house. This means there is a collective responsibility for each tenant to pay the entirety of the rent. How the rent payment is "shared" as amongst the tenant occupants is to be decided by the group. The group then also decides how the house is used by the group and its members for the duration of the tenancy.
How your daughter gets out of this relationship depends on what the relationship is. Unfortunately, with the information you have provided I'm unable to provide an answer. And of course, I have to allow for the possibility that the facts are odd enough that there might be another scenario that I'm not thinking of at the moment.
I will say, and this is speaking in general terms only, that with some legal guidance the best option is to force the break and move out. It will make sense for your daughter to move to student residence as she will be happier there and the university experience will be what it should be. There is always a risk of litigation and hard feelings but in landlord and tenant relationships nothing is ever entirely one sided. Your daughter may find herself responsible for some amount of money but I expect it would be small. She will be in a better position if she has a lawyer or legal clinic backing her and if she has given notice to the landlord, or the roommates, in a timely way.
I'm not sure where your daughter is going to school ("uni" for you--we will call "uni" "school"--which was an endless source of amusement for my Scottish friends), but if she is at a University with a law school then there should be a free student Legal Aid where she can get help. If she happens to be in Ottawa I'd be pleased to meet with her and review her situation without charge.
Michael K. E. Thiele
www.ottawalawyers.com
Hello. Third time lucky posting this! My daughter is a 21 year old international student who arrived in London ON about 4 weeks ago. She did not get a room in halls due to an oversight by the uni so we quickly had to find accommodation. My daughter found a room sharing with 4 Canadian students who we were told already lived there and her name was added in writing to an existing agreement with the other girls with other names scribbled out. She was told that she needed to furnish her room and we arranged to rent furniture from the letting agent. She moved out to Canada and found the other girls were in the process of moving in. They weren't particularly welcoming and very soon asked her for several hundred dollars towards furniture which they had already bought between them and had nothing to do with. This caused an awkward situation and she agreed to pay 150 dollars per term (on top of expected utilities, broadband etc) towards household items like cleaning products and towards cost of household goods. This was agreed and money paid then on the weekend she ha two friends around on homecoming and the youngest of the girls started a row about sitting on the sofa when she owed six hundred dollars. A disagreement ensued for which my daughter has apologised for part but nothing from the girl and this has caused upset to my daughter who usually avoids conflict. Her mind is now made up that she needs to move to halls, if possible, as there is obviously an underlying resentment from girls about the money and she is feeling awkward and stressed about the situation. The fragile bond that was there with the girls has irretrievably broken down. I would like to know the legal position with the rental agreement, how to give notice and act in reasonable manner as it is inevitable that the situation is not going to resolve itself. Thank you for your help.
ReplyDeleteHi Michael
ReplyDeleteI should make a correction that 150 dollars per term has been agreed separate to the contract and paid this term for household items like cleaning products and towards wear and tear of household items that the girls have bought. The bills are shared equally and paid separately in addition to the rent and household charge. Sorry for my original error.
Hello Michael;
ReplyDeleteThank you for the information you provided. I have a question, my daughter started university and is living in an apartment with 2 other girls. We were told by one of them that she (my daughter) is subletting from her as she is the main contact with the landlord. It`s only been two months since school started and this girl seems to be trying to control everything in the apartment instead of reasoning with the other girls. For example, the first month my daughter found a garbage bag in the storage area (where the freezer is kept)full of maggots and flies. She kindly asked this girl to throw the bag outside. She apologized and said she forgot it there and would do so as soon as she got home. A few days went by and my daughter and the other tenant had to throw it out as she never did. My daughter went out and bought a garbage bin for outside in order to prevent this from happening again to which they all agreed. But again this month, she did the same thing and when they asked her to throw it outside, she didn't. It took over a week for her to do so. Second example is the heat control. It`s controlled by an app on the phone and they asked her for the code because apparently the place was extremely hot. She was refusing to give it to them, saying to open windows and use fans. One of the girl has asthma and kindly asked her to put the heat down because it was too hot and she couldn`t breath. Her response was to use a fan. This was a health issue but she still refused. She claims that she is the only one who can contact the landlord is there is anything wrong as she is the main contact with him and those are his wishes. My question is, what are my daughter`s and the other tenants rights in a situation like this? I think both of these situations are health issues (bugs in the house and overheated / can`t breath). There are other little situations on not cleaning and stuff, but that`s just petty things.
Hi: The first question is whether your daughter is a tenant or a roommate/occupant in the rental unit. The statement by the "girl in control" that your daughter is subletting is most likely legally inaccurate. Your daughter is only subletting (by legal definition) if she is renting the entire rental unit from the actual tenant who has moved out of the unit for the duration of the sublet.
DeleteYou don't mention whether your daughter has signed a lease with the landlord nor do you mention how your daughter pays rent (to the landlord or to the "girl in charge"). The answer to these two questions would be helpful in determining whether your daughter is a tenant or a roommate.
If your daughter is a tenant then she has equal rights to that of the "girl in charge". If your daughter is not a tenant (i.e. she is a roommate or occupant of the unit only) then she has limited rights vis a vis the landlord under the RTA. Further, your daughter, if she is not a tenant, does not have security of tenure in the same way that the actual tenant has protection from eviction. The "process" rights that a tenant has will not apply to your daughter if she is not a tenant as defined under the Ontario Residential Tenancies Act.
That's the starting point. If you have additional information I would be pleased to consider it further.
Michael K. E. Thiele
www.ottawalawyers.com
This is fantastic.
ReplyDeleteHi Michael, I am living in NS and am in a now month to month lease with a room mate. My health is deteriorating too much (crohns disease) and have received a layoff from work. It is the 5th of the month and have today expressed to the landlord I wish to terminate my occupancy. I do not have much money saved unfortunately and I do not want to pay another months rent. (I have relatives to stay with) The landlord seems to want me to get my room mate to sign something saying I am no longer on the lease and she is solely responsible for the full amount. At which point she could find a new occupant or tenant. I guess my question is if I cannot find a new renter for my room mate and I have to leave what will be the consequences since it is only a monthly lease term anyways?
Hi: I'm presuming that NS stands for Nova Scotia? If so, I'm terribly sorry but I limit all of my comments to Ontario law. The Residential Tenancies law of the provinces are all very different and I'm afraid I know nothing about Nova Scotia law.
DeleteGood luck to you
Michael K.E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI currently reside in a 1bd suite and have solely maintained the unit without issues. I have a great relationship with the landlord/resident services.
My question is, when my Fiance and I moved in, both names were on the lease. 6 months in, he decided to quit working and we ran into issues. Long story short, I've paid the rent for 4 years now alone, he's now decided to contact a Paralegal and have his name removed off the lease. He has the right to do this, however, my concern is will I have to sign a new lease agreement which will include the new terms of rent for a 1bd which now also includes hydro?
Any advice would be greatly appreciated.
Thanks,
Mina
Hi Mina:
DeleteThe Residential Tenancies Act does not provide a clear route to add and remove names from a lease. Your former fiancé will have a hard time getting a legal way to remove his name from the lease if the landlord says "no". At this stage, especially given the passage of time, the likelihood that your ex could successfully terminate the entire tenancy is exceptionally remote. Hence, I don't see you being forced to sign a new lease--BECAUSE they can't successfully terminate your current lease.
Your landlord may be entirely willing to simply remove your ex from the lease. If so, problem solved. Given the passage of time and the fact that you have been paying the rent for 4 years I would imagine that the landlord should have no problem with this. However, if the landlord seeks to take advantage of the change request (i.e. removing a name), you could simply refuse to do anything. If something did start to happen--i.e. you stopped paying rent, damaged the place--and you created liability that would allow the landlord to get a judgment against you it is certainly possible that the landlord could seek such a judgment against your ex as well. However, any claim against your ex could not be at the Landlord and Tenant Board. He would have to be sued separately. Your ex could then sue you to indemnify him on the basis that he hasn't been living there and therefore he should not be responsible. He would likely win such a claim. Note of course, that this only happens if the landlord sues him and you are actually liable to the landlord for rent arrears, damage, or some other claim.
Hope that helps
Michael K. E. Thiele
www.ottawalawyers.com
Hi I see nothing in what I have read thus far in regards to the inn keepers act of Ontario, It is still in effect and enforceable, as I have recently used it to remove a renter from our cottage.any thoughts?
ReplyDeleteHi: Not all "renting" relationships are governed by the Residential Tenancies Act. Contractual relationships that are covered by the Inn-Keepers Act are specifically not covered by the RTA. To know whether a particular relationship is covered by the RTA or not you need to look at the exemptions. The major exemptions are in section 5--and include in s.5(a) the travelling and vacationing public--which is your typical Innkeepers Act occupant. Note that the RTA trumps all other legislation other than the Human Rights Code. Which means that if the RTA applies to the particular housing relationship then trying to characterize the relationship under the Innkeepers Act will not be lawful.
DeleteMichael K. E. Thiele
www.ottawalawyers.com
I was wondering about a roommate that had left the unit, along with all her property. When I asked her when she was coming to get her stuff she told me to throw it all out, however being a nice person I said I would hold it for a little bit for her so she could come get it. It has been almost a month since she has not returned to the premises and the room she was in is still full of her stuff. What can I do about it since she has not paid to store it or made any arrangements to come get it? Thank you for any help
ReplyDeleteHi: The Residential Tenancies Act does not help you with this problem at all. As a roommate, the RTA sections respecting personal property that apply between a landlord and tenant do not apply to you. You are left with the general law and what would a Court require of you. That law, I think, is bailment.
DeleteThat being said, you've been advised by your roommate to throw it all out. If you have that confirmed it pretty much solves your dilemma--especially if you can prove that she told you this. Perhaps confirm in an email, text message etc.. Based on that you have the okay to throw it out. The only annoying thing is that the work falls to you. In theory you could pursue the roommate for disposal costs etc., but I'm guessing that would be a lost cause so this is something you will just have to do. Keep track of your time and expenses and also take pictures of the room, its condition, and the mess you have to deal with. If you ever have to prove (to a Judge) what you did and that your actions were reasonable you will be happy to have photos, text messages or emails, etc..
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi there,
ReplyDeleteI have found myself in a bit of a different situation: I was engaged to be married and my partner, my daughter and I moved into a 2 bed apt (partner and I both signed and agreed to a 1 year lease) in Ontario. 2 weeks befire the wedding, he left us. As we both signed is he still legally bound to pay half of the rent? Also, if I were to pay only half to my landlord, would he be obligated to chase my ex for the remaining portion?
Hi: Before delving into your situation I'd be really curious to know if your name is actually Maude Lynn or is it just clever (and perhaps a bit sad?). The name certainly fits the scenario and I'm sorry for you having this experience.
DeleteYour partner is liable on the lease because he signed it. Presumably you committed to a period of time (likely a year), and now you have that monthly debt for at least a year. Understandably you expected to be sharing this expense with him and you were going to make a life together. By signing the lease he got you to sign the lease. He does not just get to walk away and leave the expense to you. While he is liable to you, his liability is not forever. You would be required to mitigate your losses. You could try to assign the lease to the apartment if it is not affordable and move elsewhere. The ongoing costs until you managed to do that should be shared by him. You could advertise for a roommate and bring someone else in to share the expenses. The costs while looking for the roommate should be shared by him. It is unlikely that you can just remain in the unit, do nothing to reduce the costs, and expect to have a Court order him to pay half.
The landlord can chase your or your ex for all or part of the rent. If you signed one lease and you did that jointly the landlord will likely chase the person who is easiest to chase. Given that the landlord knows exactly where you are you are likely the easiest target. It would be up to you to sue your ex for contribution.
Good luck
Michael K.E. Thiele
www.ottawalawyers.com
Hello Michael!
ReplyDeleteQuestion regarding a lease my daughter has at school... Her lease is for a bedroom in a 4 bedroom house with 3 other students. Each of the students signed individual leases and are responsible for their stated rent amount (i.e. $500). One of the students has given notice to vacate at the end of the school year. In my daughter's lease there is a clause that states
" Units’ common areas to be shared by lessee of room #1, room #2, room #3, room #4 and room #5. If any one tenant signs an agreement to terminate tenancy early at the end of year 1 or 2 or 3, this shall be considered termination by all tenants."
As a result the landlord has given them the ultimatum of moving out or paying the rent of the vacated room. My daughter and her roommates do not want to move, nor pay more!
Is that a valid clause? Thank you.
John
Hi John. Oh the weirdness of landlord and tenant relationships. Here I thought I'd heard it all and I have the pleasure of reading what you've written. I trust you see the absurdity or inherent contradiction in this situation. You can't have separate leases, and separate obligations, and then make the rights under those leases dependent on what non-parties to that lease do.
DeleteBased on what you've written, the landlord has created a rooming house. He can't force some tenants to vacate just because other tenants are moving.
The solution to the problem is for the students to take on the house as a single tenancy and each be responsible for the entirety of the rent. If that happens, the tenancy continues and the tenants replace themselves as individuals move out. Of course, one lease creates more liability for each tenant but it also gives them, as a group, control over who lives in the premises. Right now, with 4 individual leases (and this being a de facto rooming house), the landlord could move anyone he wants into the premises without regard to the likes or not of the sitting tenants.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteMyself and a friend signed a lease together in November 2015 for a year - both signed as tenants. We are now on month to month agreement. The other tenant had just informed me of her wish to end her tenancy and 60 days notice was given, as she will be moving in with her partner. I wish to remain as a tenant in the apartment unit.
A few questions - if she signs the notice of tenancy termination and I do not, would this still end tenancy for us both? If not, would I have to sign a new lease agreement or would the agreement originally signed still be valid for myself since I am not the one terminating my tenancy? Lastly, If her name remains on the agreement, would this affect her when she tries to rent another place?
I am able to afford the current rent amount on my own, however if a new agreement is signed I am told I would have to pay the current market value which is $700 more than what it is now. Of course I'd rather not pay that amount more, as well as sign another year lease.
Your response would be greatly appreciated!
Thank you.
J
Hi: You would think that there would be a categorically clear answer to your question. Not only is your situation not uncommon I'd say it happens regularly. Therefore it is unfortunate that I have to tell you that you will need to "feel" your way through this situation. The landlord doesn't hold all the cards--but neither do you.
DeleteMy personal view is that once a tenancy like yours (two or more people on a fixed term lease), go month to month, then any of the tenants in the tenancy are entitled to terminate that lease by giving notice to the landlord. I say it this way, an avoid using terms like "joint tenants" or "tenants in common" because those phrases invite property law analysis and an application of that law to the statutory tenancy created by the Residential Tenancies Act. The automatic month to month tenancy with the landlord being deprived of terminating that tenancy unless for the specified reasons set out in the RTA, in my view, makes the whole property law analysis a bit foolish.
So, I say you need to "feel" your way through the situation by working with the landlord relying all the while on the inadequate provisions of the RTA on this subject. The reality is that a co-tenant moving is not an act of termination of the tenancy. While you remain in possession, the tenancy continues and if you pay the rent owed under the lease the mere fact of your co-tenant moving did nothing to the tenancy. Did your co-tenant giving 60 days notice terminate the lease? The Landlord and Tenant Board will say "no" and that a lawful notice will require both tenants to sign the notice. This is great for you--but not so great for your co-tenant who is trying to "end" her liability on this lease. Wouldn't it be great if the landlord just "removed" her name from the lease and agreed that you were now the sole tenant?
So, what can the landlord do with this situation? The landlord could take the position that notice by one tenant is effectively notice for all tenants. After the termination date the landlord could apply to terminate and evict. The landlord would argue that after the notice date all continued occupants are now unauthorized occupants. The landlord has a limited window in time to bring this application failing which the lease is deemed assigned to the existing occupant (who happens to be you).
What will the LTB do if the landlord brings that application? I don't know--but I'd love to have the precedent and would love to see someone appeal it to the Divisional Court so that we would finally have the binding legal answer to these circumstances.
Best of luck
Michael K.E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeletei have a question. I own a house where I live and I am renting out 2 other rooms and the basement. So the owner living in the house sharing kitchen and bathrooms. I need to increase the rent per each room and was wondering what notice do I need to give them and how much I can increase the rent by as from what Im reading, the roommates/boarders do not fall under RTA.
Thank you
Hi: It sounds from your description that you relationship with these roommates is not covered by the RTA. Sharing the kitchen and bath gets you an RTA exemption in section 5 RTA. This exemption means that the rent rules and notice rules under the RTA do not apply to you. You may raise the rent whatever amount you wish--subject of course to your contractual obligations.
DeleteMichael k. E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteI have situation where I have 3 tenants on a lease. One wanted to leave and get off the lease while the other 2 wanted to stay and get a new roommate. I wanted the lease to end as these tenants have given me a lot of trouble with various issues. Regardless, the one who wanted to leave has just left and I'm sure the other 2 have gotten another roommate without asking me or telling me who it is. Is an unauthorized roommate like this grounds to terminate the lease? Of course I would have to get proof that there is someone else living there.
Thank you
Hi: Thank you for the question. It is a fairly common occurrence. The first thing to determine is whether the lease has been terminated. While there may have been a fixed term, the lease continues at the end of the fixed term on a month to month basis. The lease has not ended at the transition from a fixed term to a month to month. If the tenants gave you a Notice of Termination then the lease has ended. If only one of the tenants gave you a Notice of Termination there would be a question of whether that Notice from one tenant terminates the lease of all tenants. My personal view is that it does. However, there are arguments made by others that a Notice of Termination of a single lease with multiple tenants must be signed by all of the tenants in order for it to be a valid termination.
DeleteIn any event, if you have not received a Notice of Termination and the only thing that has happened is that one tenant has moved out then the tenancy continues. If the remaining tenants take on a roommate that person is not a tenant. You could choose to recognize him/her as such, but you do not have to.
Taking on roommates is something that often drives landlords crazy! There are many reasons for wanting to control who lives in a rental property--some reasonable and some unreasonable. The fact is that the landlord has no control over roommates and occupants per se. Transferring a tenancy without the landlord's consent is contrary to the RTA as an illegal assignment or sublet. However, what is happening here (adding a roommate) does not constitute an assignment or a sublet. A sublet requires the original tenants to vacate the unit (by definition in section 2 of the RTA). Because the original tenants are not moving out there is no unauthorized assignment of the rental unit.
In short, absent the termination of the tenancy by the tenants there is nothing you can do about this. You don't have the unilateral choice to end the tenancy for the reason that they have given you a "lot of trouble". You need to find grounds for termination in the RTA--which are all fairly specific. Absent that, the remaining tenants have security of tenure and may remain.
Michael K. E. Thiele
www.ottawlawyers.com
I live in a 5 bedroom house in Toronto, when I first moved in here in 2011 we were 5 tenants( and 5 guarantors) that signed on the lease. Since then I've experienced room mate change over and I am now the only official tenant on the lease. We have never missed a rent payment and I've been cautious with who I accept as new room mates. We now each pay extra to have 4 people in the house instead of 5.
ReplyDeleteRecently my landlord threatened over email that he was going to start proceedings for eviction because I am illegally operating a rooming house. I'm not making money from my room mates we split the rent evenly, they transfer the money to me and the lump sum rent goes to the landlord as it always has for almost 8 years. (I obviously can't pay for the house alone so I have to have room mates)
Since the original threat, he has come back saying that we can offer to assign the current people to a new lease and IF approved we will start a brand new year-long lease instead of remaining month to month. He expects our offer by March 11.
However with one of our current room mates leaving in May we will only have 3 left over until we find a new room mate. My concern is that if the landlord refuses to approve the new application will he still have grounds for my eviction? (He says the remaining three have to have sufficient gross household income to be approved (between the three of us I don't think we do))
From reading this, I don't think we are doing anything wrong, since I'm not operating a business. If we don't provide the assignment offer and I remain as the sole tenant (with my current/future room mates as my sub tenants) is that enough grounds for eviction? What would constitute as room mates vs. rooming house? These aren't strangers in my home anymore we have a personal relationship.
In the lease it states, "THE Lessee covenants not to assign or sublet this lease without the prior written consent of the Lessor, such consent not to be arbitrarily or unreasonably withheld. The Lessee covenants to pay the Lessor's reasonable expenses incurred in providing the aforesaid consent. " and he is using this as his reasoning for me breaking the law. However I've maintained residence in the house the entire time and from my understanding it is only a sublet if ALL tenants move out temporarily.
Any thoughts?
Hi: What you are doing is perfectly legal (as described by you). You are not subletting by doing what you are doing. If you vacated the unit and then brought in subtenants that would be subletting---but that's not what you've described. See section 2 of the RTA for the definition of sub-letting---you'll see that you're not doing that.
DeleteIn what you've described there is no legal basis for termination that I can see.
Michael K. E. Thiele
www.ottawalawyers.com
Hello Michael,
ReplyDeleteMy son signed a lease with six other students for a shared house in Waterloo and I also signed as a guarantor. The lease we signed was titled "Residential Tenancy Agreement (Standard Form of Lease)" And it says it is required for tenancies entered into on April 30 2018 or later. All seven students and most if not all had parent guarantors. The lease starts a month and a half from now and the house is still occupied by a group of 4th year students.
In the Rent section of the lease it states that:
The Tennent will pay the following rent: Base rent $3300.
As there is only one rent amount and all students signed the same lease does this mean we have a group lease?
I ask because we are currently trying to fill those two spots with new students.
From reading your Blog I see that the landlord cannot unreasonably refuse a new student and I realise it is in the landlord's interest to get new students to ensure the rent is paid, however I haven't been able to see what say the remaining tenants have. If we select tenants of the same year and the same gender who say they are studious and seem to be, can the existing tenants veto these selections meaning that we will have to continue to pay our share because the existing tenants won't accept our replacements?
Regards...
For various reasons primarily that, not surprisingly, the group has now fallen apart and is not tenable that they actually live together.
My son and another student realise that they cannot live in that house with the group.
Hi Fred:
DeleteAs I understand your question and as you describe the documents it does seem to be a single tenancy agreement. In student situations like this, each of the tenants who signed the single lease is a tenant under a single tenancy. The group of students who signed the single lease are then collectively a single tenant. The individual people are liable for the entirety of the obligations of the "tenant" which is the collective group of individuals. Hence, each tenant (and likely guarantor) is responsible for the entire rent of $3300.00 plus any damage to the rental unit etc.. The liability is much much bigger than just the room cost.
Advertising to students can be a little deceptive--or appear that way. Partially, landlords advertising to university students are speaking the student's language when the rent is described as a per room cost. Hence, a 5 bedroom house is described as $650 per room (total $3250). Students think of their responsibility for the $650--without realizing that their liability is actually $3250 per month for which they get stuck if any of the roommates fail to pay. Also, it can become the guarantors responsibility if no other student pays and the other guarantors disappear as well. If this happens, the student (or guarantor) who did pay it all can sue the other tenants and likely the guarantors to reimburse the proportionate share (which interesting also varies depending on successful recovery against the entire group or only a part of the group).
If the lease you describe is what I think it is--the landlord has no say or concern on replacements. The landlord has a single tenant (i.e. the group) and the landlord is expecting a cheque. If there is no cheque the landlord can file an application naming all of the tenants on the lease and get an Order. The landlord can choose to terminate and evict--or maintain the tenancy and get an Order for money (they do this using an L9 form). Going by way of L9 can be clever if the persons on the lease are a good credit risk or the guarantors backing up the individual tenants are a good credit risk.
The horror of this circumstance is somewhat reduced if your student (son) is not in possession of the unit. The landlord should not name you son (or you) on any application to the landlord and tenant board if your son is not in physical possession of the rental unit. The landlord should only name the people living in the unit. Hence, confirm with he landlord that your son is not moving in.
The legal action then is between the landlord and the individual people in possession. Those people in possession are liable for the entire amount and the landlord can get an Order against them at the Landlord and Tenant Board because they are in possession and hence subject to the jurisdiction of the Board. Those tenants in possession, therefore, should be motivated to find replacement roommates.
DeleteYour son, and possibly yourself, could be liable for rent is the tenants in physical possession are unable to fill the spots with new people. Whether they are actually unable, whether they chose to be unable, is a question for a Court. If they fail to find replacement(s) for you son then they will not be able to recover against your son--if you can establish that they did not try to find a replacement. They might simply choose to absorb the extra cost and enjoy the extra space.
If they truly try to find a replacement and can't then the question is whether they should terminate the tenancy and make the entire house available to be re-rented (perhaps an assignment of the tenancy). They can't just enjoy all the space and not re-rent or shrug and say "no one answered the advertisement for a room".
At its messiest there are claims, counterclaims and cross claims. Theoretically, if the remaining tenants in possession are all deadbeats, the landlord could get an Order evicting them and then sue your son and you in Small Claims Court. You would likely be liable to the landlord (due to the lease) but you would then file a defendant's claim against the co-tenants and their guarantors. You might end up out of pocket but you have a Judgment against the original roommates (co-tenants).
With respect to the landlord. The landlord is not required to arbitrate disputes amongst tenants. Replacing individuals within a group is not subletting---hence landlord's consent is not required.
Lastly, the circumstances of signing the standard form lease might be an issue if your son was misled as to its meaning. Pulling out all the stops--if the landlord's advertising, emails, text messages show an intention to effectively create a rooming house then you could argue that the lease should be disregarded. In that case, each bedroom would be its own tenancy agreement. If you go down this road, the choices are different---and this blog comment becomes a book.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thank you for the informative post Michael.
ReplyDeleteI am asking this question on behalf of a friend that has found himself in a situation that falls between Scenario 1 and 3. My friend rents part of a house. There is also a basement unit with a separate tenant. My friend has a lease between him and the landlord that states that utilities are to be split equally between the main unit and the basement unit. The basement unit has a separate lease. My friend and the tenant of the basement unit have not signed the same lease. My friend has not seen the lease signed between the landlord and the basement tenant but would assume it also includes a term about splitting utilities.
The landlord does not pay for the utilities. When my friend moved in the basement unit was empty. The utilities are in my friend's name and he has been paying the full amount. There are NOT separate meters for the main unit and the basement unit. The basement unit is now occupied and using utilities. The basement tenant has refused to pay 50% of the utility bills. The basement tenant did pay 30% of the utility bills for a time but is now refusing to pay anything.
In this case does my friend have any recourse against the landlord, or must he only pursue the basement tenant directly? There is no contract between my friend and the basement unit tenant regarding splitting utilities. Instead each has their own lease between them and the landlord that says each is supposed to pay half. Is the landlord at fault for not having a separate meter for the basement unit? Or for not paying for the utilities directly instead of shifting that responsibility to one of the tenants? Can my friend force the landlord to take action against the basement tenant for not complying with the terms of the lease between the basement tenant and the landlord (assuming the lease contains the same terms as my friend's lease)?
Thank you.
Hi, I have a friend staying with me whom is not on my rental agreement. This person was supposed to stay temporarily while finding a new place. That was over a year ago. Can I just kick this person out because they are not on the rental agreement? Honestly I don't need a roommate and they don't pay rent at all. What are my rights as the tenant on the rental agreement?
ReplyDeleteHi: From how you describe the relationship with this "friend" I can see the law characterizing this person as anything other than a "guest". You may ask your guest to leave whenever you wish. You are not obligated to house the person--unless there is some other legal reason that you are required to support the person (for example, the person is a child, you are guardian for that person, etc.). Presuming that the "friend" is a competent legal adult there is nothing in the Residential Tenancies Act that would give this person any rights vis a vis the landlord and yourself.
DeleteGood luck
Michael K. E. Thiele
www.ottawalawyers.com
Hello,
ReplyDeleteI have been living in an apartment in a house for about 7 years with two co-tenants (who are best friends and in a band together) that have been here for about 9 years. A year and a half ago they began to pressure me to move out, claiming they have some kind of seniority advantage. For the past year and a half there has been altercations every few months that devolve into them screaming insults at me and demanding I move. We used to be close friends but our interests drifted apart after college.
That is not an option as far as I’m concerned as I absolutely love the neighborhood, the neighbors, the building and am paying well below market rent after such a long time on one place.
One of them has moved out claiming it was all my fault that he was leaving, and that if I had just left this house would be perfect. The other seems to be lashing out at me over this.
We had a roommate lined up that is a mutual friend of all of ours who the guy who’s leaving was going to “sublet to, but stay on the lease and keep his spare room in case he needed somewhere to crash downtown.” he was also going to continue to store stuff here in that spare room under lock and key. The new roommate who he was planning on subletting to indefinitely would pay his full share of the rent and could be asked to leave at any time if the co-tenant wanted to come back. This was all arranged behind my back, and it’s only because I overheard them talking about it that I found out.
I told him that if he’s moving out, he’s moving out full stop and that he can’t excpect to enjoy the priviledges of having his name on the tennancy agreement here if he isnt living here or paying rent. After a large argument he gave in.
This week the new roommate told me that the other co-tenant (the one who’s still here) was talking to the landlord trying to have a new lease written in his name only. I obviously wouldn’t agree to this, but what can I do to protect myself? He was going on about having the guy who left’s tennancy assigned to him so that he “owns 2/3rds of the lease” and could have some power over me. I also fully believe he will slander me to the landlord and blame me for damages to the house he has done.
TL;DR: My roommate is trying to get me taken off the lease
Hi: The things you mention in this fact scenario reveal the tremendous shortcomings in the law. The Residential Tenancies Act does not solve the problem(s) you identify and the RTA certainly does not support the concepts that you mention in the context of your single tenancy. There is no such thing as "sub-letting" a single room in a house that is under a single tenancy agreement where some of the tenants on the lease remain in the premises. Your co-tenant, who moved out, is still a tenant and still is liable for the rent (his share or 100% of it). The reason is that his moving out does not terminate the tenancy agreement. His moving out, also, does not terminate his tenancy or his right to occupy the premises under the lease. As far as the RTA is concerned, his moving out, while you and the other co-tenant remain, is largely meaningless (except that the landlord can't name him in an application to the Landlord and Tenant Board while he is out of physical possession).
DeleteBuying up the leasehold interest of a co-tenant (in a person single tenancy) to create a 66.6 per cent interest is novel. In the context of a residential tenancy (under the RTA), I don't see this working at all. Even if you tried to put the wheels in motion to create the paperwork to make this happen--who would enforce it? Certainly the Landlord and Tenant Board would have nothing to do with it as the LTB doesn't adjudicate disputes amongst co-tenants. I don't see the Small Claims Court taking jurisdiction either so then you are left with an application to the Superior Court of Justice. That too seems far fetched given the time and extreme financial cost relative to the value of the tenancy.
If trying to create a percentage interest in the lease I suppose you would have to start from the assumption that all three started with an equal interest. Then, what are the terms of what each individual can do with their interest presuming it can exist as a discernible separate interest. If you start with a joint tenancy, then sever it to create a tenancy in common, I suppose some would argue that each tenant then can do with their part what they like. This "idea" taking property law principles and applying it to a modern residential lease gains some traction in Jack Flemming's text book (current author of authoritative text) but with due respect to him, this strikes me as all nonsense. The modern residential lease in Ontario is to me entirely statutory. The property law principles that one is tempted to apply to it don't function so cleanly when the lease has no end. The indefinite nature of the residential lease, the security of tenure concept, and the inability to contract contrary to the RTA (s. 4 RTA) makes the whole traditional property law analysis of such leases cumbersome and invariably leads to serious injustice with slightly different facts or circumstances.
If your facts were presented to me to "plan" a strategy, I would operate from the basis that this tenancy needs to be terminated. The relationship is poisoned and somebody needs to go if peace can not be made amongst the current tenants. To that end, I'd be engaging the landlord in a discussion to see if he would agree to a termination of the tenancy and then entering into a new tenancy agreement with one fo the existing tenants. Of course, this means new terms and likely a new market rent. If the landlord would play ball, I'd then cause an N9 to be served terminating the tenancy while at the same time signing a new lease with the landlord for the day after the termination date in the N9. This then brings to a head a clash with the "other" tenant. The "other" tenant is told the tenancy is over as per the N9 and that they have to leave because there is a new tenancy agreement that does not include the "other" tenant.
DeleteOf course, the "other" tenant may not want to accept this turn of events. It then leaves you set up for either an application at the LTB by the landlord (to evict unauthorized occupants after the N9 date) and putting the new tenant in place, or for the new tenant to file an application to the Superior Court of Justice for a writ of possession.
Practically, I don't think a landlord would play along with bringing the "unauthorized occupants" application. Why would he? A headache, time, expense, there's nothing in it for the landlord. Hence, I see this heading to the Superior Court----and wow, would I ever wish that to happen---as clarity in the law is desperately needed. It's not that there isn't any useful caselaw--there is. Unfortunately, it is English (U.K), but to me it makes the most sense. We need a clear way for co-tenants (under the Residential Tenancies Act) to terminate a lease, unilaterally. That is currently entirely unclear and calls to the Landlord and Tenant Board about how to do that is entirely unsatisfactory (they tell you to get agreement from your co-tenant which is not helpful advice if you're fighting).
So, in a nutshell, I think that the current machinations you describe are really a stalemate. No one is leaving, no one can make anyone leave, and everyone is unhappy with the other people but happy with the property. There is no "simple" way out of this given the positions being taken.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Michael, your blog is amazing and I've been learning a lot from it.
ReplyDeleteOur family rents out 3 rooms in our house to students, who we share the same entrance, bathroom and kitchen. We signed a 1 year lease, stating that they cannot terminate the tenancy. But that we can terminate it with 14 days notice if they violate the rules. In the 20 days so far, they've never cleaned up after themselves and often made loud noises at night. We have warned them before and once called the police for blasting music and slamming the doors at night. We have text messages of our warnings, a police report, and another roomer as witness.
One day, we had the police escort out one of the tenants because she posted on social media that "she always dreams of pouring acid down on unsuspecting people" (we live below her). She also had a history of suicidal posts. We decided to keep her LMR during the vacancy of the room since we felt our eviction was justified.
One week later... we confront the other two tenants about the intentional door slamming. My mother raised her voice and said "if you did this in someone else's house in China, you'd get slapped". The roomers reported my mom for threatening them, even though she was just explaining how disrespectful they were being. The police told them they could move out if they felt threatened, which they did. We know that they are just using that as an excuse to find a cheaper shared place.
Now they are demanding their unused rent back, but we feel they left for a flimsy reason. Do they still owe us money for the vacancy?
Thank you so much!
Hi: Wow, this is messy! There is probably blame to go around and I don't think, based only on what is written here, that your position is especially strong. The police, by suggesting or giving permission to your boarders to move, were probably de-escalating a situation that they felt would only continue if your boarders remained in the home. In any legal proceedings I am sure that the officers' view of the situation in the home would be important even dispositive evidence.
DeleteThe lease you signed with the boarders is a contract. It is not an RTA covered tenancy because you share a kitchen and bathroom with the boarders. While you may freely contract, a Court is not going to enforce a contract that contains terms contrary to public policy. A contract that requires the boarders to remain, or prohibits them from terminating, while at the same time they are subjected to rules, demands, and possibly threats of physical discipline (regardless of how it was meant) is not a contract that a Court would enforce. I appreciate that you don't consider your position as unreasonable, but it seems that your boarders will assert that. Most importantly, the police who would be considered independent third parties who were present at the home also appear to have sided with your Boarders.
If it comes down to a legal battle the Court will analyze the relationship using contract principles. The Court will likely imply the typical covenants into your contract (meaning: whether it is written or not, you will be deemed to have contracted to provide quiet enjoyment etc.), and then determine who has breached the contract. Determining who has breached will then determine who owes what to whom.
There are a number of considerations. As you did not force the tenants out I would be surprised if the Court ordered the reimbursement of already paid rent for the unused period for which it was paid. My guess, again based on the limited facts you provided and those being from your perspective, is that the Court would allow the tenants to terminate but require them to pay you one rental period. Hence, if they pay by the month then they would have to pay you a month, or by the week then a week, etc.. I don't see a Court holding the tenants to a one year contract and unlimited liability to pay rent for a period in which they are not in the premises. Even if the tenants vacating were held contrary to your lease/contract you would still have a duty to mitigate and re-rent your premises--which in my opinion the Court would say you could do within 1 rental period.
Hope that gives you a bit of perspective. It seems to me that the group of students you allowed to Board with you were really not well suited to your family situation. Given the nature of your complaints and concerns it is probably just as well that they are no longer living with you. Consider a more careful interview and discussions with any future Boarders that you take on. Be very clear with them about your expectations and the type of household you have. If you are not forthright and direct with prospective Boarders you will have this problem over and over again.
Good luck
Michael K.E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteI'm a tenant (on lease) with two roommates (not on lease). I gave my 60 days notice to leave. They have assured me that they will leave by this time but my landlord has requested assurances that they are gone. I'm wondering 1) if the landlord can request this since they have no legal relationship to my roommates; and 2) if my roommates are legally required to leave when I (tenant) provides notice to leave?
Thanks,
Katie
Hi Katie:
DeleteThe landlord can ask the question but frankly the answer isn't worth anything. Assurances beyond the simple statement that they are leaving is a little like asking for a double pinky swear super duper promise---i.e. meaningless.
If your roommates don't leave when you vacate they become unauthorized occupants. The landlord can apply to the LTB to evict them as unauthorized occupants and they would become liable for rent for the period that they occupied. Beyond that, if the roommates trash the place (crazy party!?) you could be sued by the landlord and be liable for the rent and damage that they cause to the unit (even though you have given notice to terminate and have moved out). You have the responsibility to deliver vacant possession at the end of your notice and if you fail to do that your landlord could sue you and get a Judgment for the associated costs and losses incurred as a result of you not delivering vacant possession. An example of potential costs---and possibly serious costs--the landlord could, based on your notice, proceed to re-rent the unit for the day after you move out. If your roommates refuse to move the new tenants would be unable to take possession. The landlord then has a potential risk to the new tenants (hotel expenses, storage expenses, etc.). Those new tenants might sue the landlord and if that happens you can be pretty sure that the landlord will sue you and your roommates for indemnity.
The termination process is a serious matter and for your own protection you should make sure that your roommates do in fact leave when you do---unless you're willing to take the financial risk.
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael,
ReplyDeleteThank you for this comprehensive blog! I have a question on behalf of a friend of mine. He and his sister have lived together for the last six years in a rental apartment. Hers was the only name on the lease. He paid half of the rent, but reimbursed her directly (not the landlord). There were no written agreements between the two of them.
She very unfortunately died suddenly. He is concerned that the landlord may either:
1. Evict him, since he has no rental agreement with the landlord; or
2. Raise his rent above the permissible annual increase amount.
Should either of these two scenarios occur, does he have any rights at all under Ontario law?
Many thanks!!!
Hi: There is no easy "yes" or "no" to whether your friend has any rights under Ontario law (i.e. residential landlord and tenant law). A written lease is evidence of the terms of the tenancy agreement but it is not the only evidence that matters. A residential lease in Ontario may be written, oral, or implied. All three are of equal weight--though obviously the written lease is easier to prove. Further, certain behaviours over time can amend a lease and how the parties interact may determine whether they are a tenant or not. You mention how the rent was paid--because indeed paying rent (even by a non-tenant) can turn that non-tenant into a tenant. There are other indicia as well that can change status. One of the biggest and perhaps most useful pieces of information is learning the timing of both people moving in, the conversations that were had at the time, the importance that the parties placed on the written lease, whether the lease was intended to be signed by more than one person. A number of factors come into play that may support your friend being a tenant or not.
DeleteBeyond that, there is always the operation of the law which may yet make your friend a tenant with the mere passage of time. If he isn't a tenant--and therefore an unauthorized occupant--with the passage of time there is a deemed assignment of the tenancy to him (though the landlord needs to be aware of the passing of the tenant for the time line to start running (60 days)).
For now it would not be unreasonable to just keep a low profile, pay the rent, and see if the landlord decides to take any action. If so, then your friend should consider a consult with an experienced landlord and tenant lawyer or paralegal who could explore whether he has tenant rights or not.
Michael Thiele
www.ottawalawyers.com
This is an awesome blog. Thank you. I'm a little lost about the difference between a joint tenancy and separate leases for roommates who share a house. I have a lease with three names on it but collect rent separately from the three people (each provides me a portion of the full rent). I was told this is a joint tenancy but I have also been told that it could be considered three separate leases and therefore an N5 or N7 could be issued to one of the three people. When a 3rd roommate was needed, I strongly encouraged the two to find one but in the end I found one for them as the two were not giving a good effort. So, by me putting the three people together and working separately with each person, does that make it that I have separate leases with each person?
ReplyDeleteThank you very much for your time.
Hi: That you find the concept of "joint tenancy" confusing is not surprising as I think the legal concept is haphazardly picked at for bits and pieces as is convenient in the moment. Another option, though not a "joint tenancy" is "tenants in common". These two concepts make a whole lot more sense in real estate ownership than in residential tenancies (in Ontario). I'm persuaded by the view that property law principles (like joint tenancy and tenants in common) are displaced in Ontario by the RTA and the statutory tenancy that is create through the RTA. "Joint tenancy" embodies the idea that the survivor of the joint tenants takes the whole of the land (or lease, or bank account). Tenants in Common would dictate that the survivor only retains their own interest in the land (or asset otherwise) and the deceased's estate would retain the deceased's interest.
DeleteHow exactly are these concepts (joint tenancy, tenants in common) helpful in the Residential Tenancies concept---in my view, they aren't. Recourse seems to be had to the concepts when a particular outcome is sought, then the concepts are picked at, and then bad law is made.
In his textbook, Jack Fleming talks about Ontario residential tenancies being "statutory". I like this idea a lot because it explains the aspects and reality of Ontario leases (can't freely contract, automatic month to month, security of tenure indefinitely subject to limited exceptions) that traditional property law principles don't contemplate. That being said, there are aspects of leasing that (i.e. real problems faced by tenants and landlords) that the statute does not address and hence there is a bit of a vacuum when it comes to direction on how to solve issues.
Anyway, I'm not sure that the foregoing helps you with your problem and I don't see how diving into the law of joint tenancy will do anything but confuse matters further.
Is it fair to say the following? You signed a single lease with three people on it as tenants. That single lease document had a fixed term and they may now be on a month to month. The rent stipulated on the lease is one amount for the entire rental unit. The rental unit is the entire house and not individual rooms for the individuals listed on the lease. The individual are unrelated individuals, hence roommates, that are each your tenants under a single lease. You are aware that they are splitting the expenses of the house and hence you are collecting rent in accordance with their agreement to split the rent 3 ways. You do this as a convenience but not as an obligation. Your lease stipulates a single amount for the entire rental unit.
DeleteIf the foregoing is more or less the case then I think it is fair for you to insist on compliance with the lease terms by all of the tenants as a single tenancy. This means, all of the tenants are collectively and individually responsible for all of the rent. It means that all of the tenants are collectively and individually responsible for any behaviour issues, damage, illegal acts, impaired safety that occur in the premises. If any individual tenant prejudices the other then they may sue each other--but to you they are one entity and this is one tenancy. Accordingly, you serve one notice of termination (or multiple) but list each of the tenant names on the same Notice of Termination---treat this as one tenancy.
Going out and finding the sitting tenants a roommate or adding a new person to their lease doesn't necessarily change the one lease and one tenancy situation. Presumably your sitting tenants wanted the help and were grateful that you assisted in this way? If the intention remained to have one tenancy then this did not change. While helping them find a new roommate I presume the two paid the entire rent? And after the new roommate came in they split the rent three ways? If so, the argument is there that this is a single tenancy with one tenant (i.e. the group of three is effectively one). Whether this tenancy can be characterized as a "joint tenancy", "tenancy in common" is not really helpful or useful.
If the foregoing is not really an accurate description of the circumstances then you may have a very different situation. The distinction, I think, doesn't lie in "joint tenancy" etc., but as you say--separate and individual leases. Think of it this way---you've created a "rooming house". In a rooming house each tenant is responsible for their own rent and their own space--which is usually a bedroom. The common areas become shared space by the tenants. Tenants are only responsible for what they do in the common areas or what their guests do in the common areas. Each rooming house tenant is responsible to fulfil their individual obligations under the RTA or face the possibility of an eviction notice (N4, N5, N6, N7, N8, N12---any of these. You will need to identify in the Notice of Termination the rental unit being occupied by the tenant--usually by bedroom 1, 2, 3, etc., and you should actually number the units. Eviction in this context can be difficult for the Sheriff to enforce if the rental unit is not clearly identified.
Whether you have inadvertently created a rooming house is a question of fact. If the tenants believe that they are living in a rooming house and can point to you controlling the place like a rooming house then you may indeed be stuck with this. The written lease is only an indication of intent but not conclusive. The RTA directs the Landlord and Tenant Board (LTB) to get to the heart of the matter and to disregard the outward form of any transaction, document etc. (section 202 RTA). The LTB will consider all of the circumstances--collecting of rent individually, limiting obligation of rent to the portion and not the whole, assuming control over who moves into the house, controlling the common areas, making house rules, these are key factors in deciding if this is a single tenancy or a rooming house.
Some of what you describe can support the idea of a rooming house But there are also indicia of a single tenancy in what you describe. It would take more than what you've provided to get a firm sense of it and ultimately, its a question for the LTB and the position that your tenants take.
It sounds to me that you are perhaps a little too involved with your tenants--a tad too controlling. You may indeed have started with a single tenancy but through actions, over time, you may indeed have converted the property to a rooming house. You will need to decide, in the future, what kind of property you are renting out and what kind of tenancy you want.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael, I'm in a situation where I signed a lease back in 2016 with 3 other people (we shared the whole house and 1 person always collected rent). 2 have since left (I doubt they filed anything to end their tenancy, more likely just told the LL they were leaving). The lease has changed to month to month since, because the other tenant on the lease has consistently paid rent late. He also invited one of his friends to move in who I didnt want to move in but didnt know if I could really fight it. The friend was destructive, hostile, harassed me with emails telling me to leave and demanding I pay more rent so he could pay less, and tried to convince my LL to kick me out despite that I've always had a good relationship with him. I asked the friend to leave with 2 months notice as my understanding was he is an unwanted guest/occupant/licensee and as such is not protected under the RTA. The friend has refused and claims he has tenancy through assignment because the LL wrote him a letter/rent receipt that states he lives there. The LL has never collected rent straight from him, only from a tenant on the lease. To my understanding, no tenant leaving has ever assigned him to the lease. I've tried to research this but the RTA seems to focus on sole tenancy and not joint tenancy, especially when one of the co-tenants is not consenting to assignment of a new person. So my question is does assignment need the explicit consent of existing tenants? There is no amendment to the existing lease with our signatures and no new lease issued. The LL has stated he does not understand the situation and if this guy could possibly be a tenant so he doesnt want to risk telling him to leave. The police have refused to get involved until the LL can confirm he is not a tenant. Is there any legislation or legal documentation I can refer to that clarifies my rights in this particular situation?
ReplyDeleteHi: What a mess. To your first question. Yes, your consent would be needed to assign the lease. Once assigned you would not longer be a tenant (which makes it very odd that you would be living there). Where there is a single lease (like in your situation), it is not possible to assign pieces of that lease. Where a group of 4 tenants sign a lease--one or more tenants can't assign their interest in the lease to someone else. The RTA does not contemplate this kind of dividing up of a lease. As a tenant on the original lease you have an undivided interest in the entirety of the lease (as do your co-tenants). Dealing with your interest in the whole of the lease requires your consent. Then of course, it also requires the consent of the landlord to the assignment (which should be requested by all of the tenants). If there was an assignment of the lease to this new person it would be an assignment of the entirety of the lease and not just a piece of it. Clearly that did not happen.
DeleteWho does this new person think assigned him the lease? From the sounds of it the first two co-tenants simply left and didn't purport to do anything. Your remaining co-tenant seems only to have brought the guy in as a roommate--did he try to transfer any kind of interest to the new guy? It doesn't sound like it. To me it seems that the word "assignment" is being thrown around quite loosely and no one actually knows what they're talking about. Note that the word "assignment" has a specific legal meaning in the Residential Tenancies Act (RTA) and the circumstances you describe don't fit the definition of an assignment as contemplated in the law (RTA).
The new guy might be trying to make himself a tenant through some old school trickery. Paying rent, being treated as a tenant by the landlord, can in some circumstances make a non-tenant a tenant. This used to be easier to do and the caselaw from the early days made it relatively easy for non-tenant (occupants) to change their status to tenant against the wishes or agreement of the landlord. That has changed over the last several years and the Landlord and Tenant Board is not so quick to give tenant status to occupants unless the mutual intent is demonstrable.
DeleteSo that being said, what is your solution? You state the police won't help so I presume you've tried everything else as the police are usually the last step. Unfortunately, there is nothing in the RTA that really helps you in a crystal clear way. There is no section, passage, or anything like that to which you could refer an officer that would solve the issue. Your landlord, not being willing to do anything is making it impossible to get the police the information they need to remove the new guy as a trespasser.
Faced with this problem I'd be inclined to recommend that you file an A1 application with the LTB (asking whether the Act applies). You'd tell the story you told and ask the Board to determine whether the new guy is a tenant and hence has rights as a tenant under the RTA or whether he is an occupant and doesn't have rights as a tenant under the RTA. The Board's determination in this regard should be the information/confirmation that the police need to remove the guy as a trespasser (assuming the LTB determines he is not a tenant). Additionally, you may very well be upset with the landlord. The landlord in providing written documentation confirming the guy is a tenant is making your life difficult. The landlord doesn't have the right to install a new tenant into a unit in which there is an existing tenancy without the consent of the sitting tenants. To the extent that the landlord has made your life difficult with the treatment of the new guy you might want to consider also filing a T2 application against the landlord for interfering with your reasonable enjoyment of the property. By ostensibly giving tenant status to an occupant/roommate the landlord deprived you of the ability to get rid of this guy. That could very well be worth some compensation. Certainly, filing a T2 and demanding significant compensation should make the landlord consider very carefully how he presents himself during the LTB proceedings.
Consider retaining a lawyer or paralegal for these applications if you can afford to do so. This isn't a standard straightforward case. There is lots of nuance and having someone well versed in the RTA on your side would be quite beneficial.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Hi Micheal, my roommate and I were lease holders. My roommate suddenly decided to move and we asked from rental office to transfer his lease to me that makes me the only person who is the lease holder. So we requested this but the rental office rejected this request and they said we have the right to reject this request without even telling the reason. So, now my roommate is gone and I am paying all the rent by myself while he is still a lease holder like me. Now, when I want to do anything (e.g. insurance, adding new occupant,etc) I need his permission as well. Even when I want to leave the apartment, not only me but also him should fill the notice of moving out while my roommate is gone and he is not replying to me at all and he is not responsible. Also, I dont want to leave and I want to stay at the place and I am OK to pay to whole rent but I want to somehow drop him from the lease because I am trapped with waiting for his permissions while he is not replying. When I plan to leave in future, I don want to be charged extra because he is not giving the notice of movement and the rental office is not ending our lease because of waiting for my roommate response while he is gone and is not replying at all.
ReplyDeleteHi: This is an unfortunate situation that now does not seem to have an easy solution. I take it that your co-tenant is refusing to respond to anything? If he was still responding to communication I would suggest that you write an agreement between yourselves whereby he agrees that he is terminating his interest in the lease and is transferring whatever interest he may have to you. You would then indicate that as he has transferred his interest in the lease to you that he authorizes you to give any required notices or all communications with the landlord on his behalf as necessary relating to matters involving the lease of the premises. Then you would agree to indemnify him for all matters and issues arising from the lease--from rent to damages and all issues arising in the tenancy.
DeleteWhile doing this would not prevent the landlord from suing your co-tenant in the future if you defaulted on an obligation, such an agreement (I think) would certainly empower you to deal with the entire lease/tenancy yourself.
Is there any chance that you could get your former co-tenant to respond to something like this---maybe you could encourage a response by suggesting that you only need one signature from him releasing his interest in the property and you will NEVER bother him again!?
If you can't get co-operation from your co-tenant there is no clear path forward. My inclination would be (to solve the problem you describe) would be to inform the landlord that your co-tenant has vacated the property as of XX date and has stopped paying rent. You would assert that he has therefore transferred/assigned his interest in the tenancy to you. You could then state that in accordance with the Residential Tenancies Act that there will be a deemed assignment of his interests in the lease, to you, in accordance with section 104 of the Residential Tenancies Act.
Is this second path entirely fool proof/accurate? Not really, but it isn't entirely wrong either. The point in asserting this is that it puts the landlord in as big as a pickle as you are. The RTA doesn't have a solution for these kinds of issues so the path forward may be to assert an assignment of your co-tenant's interests in the lease to you and force the landlord to take a contrary position. The landlord could try to terminate and evict you under section 100 (unauthorized occupant), which I don't see as being successful but it would certainly bring to a head the problem you describe and perhaps the LTB would fashion a proper remedy or describe what happens to a tenancy when one of multiple co-tenants vacates and leaves the other co-tenant behind.
Lastly, your circumstances are not that unusual. Most of the time, however, I see the tenant who stays behind simply assuming the responsibilities, not bothering with the former tenant, and proceeding as a sole tenant (i.e. do what you want as a sole tenant).
Michael K. E. Thiele
www.ottawalawyers.com
Hi Michael
ReplyDeleteMy son and his roommates find themselves in a spot of trouble in St Catherines. They all attend University and just received notice to attend a landlord and tenant board hearing in 2 days. It seems one of the 5 roommates had not paid any rent since signing on at the beginning of the year. My son and the other roommates were unaware of this until notified of this January 10th with the board hearing notification. The roommates approached the offending individual who assured them this was being taken care of. Next thing you know last night the tenant moves out in the middle of the night, calls the landlord reporting he's gone away and can not pay his portion. So now my son and other tenants are on the hook for the $3,600.00 in arrears ($900.00 each) and must present to the board in two days thinking that it had been taken care of. We have not seen the lease but we assume they are essentially "co-tenants" and that there is some kind of "joint and several liability clause" to the lease. All the boys are immersed in studies and really don't have the where with all to deal with this. We wonder what was happening for so long for this to go unchecked until now and for the boys not to be informed of the roommates failure to pay so as to try and do something about it well before this. Neither us (parents) can make the hearing to help out. They know the boys home address and called him. He told them to leave him alone, provided no explanation, and hung up. We are hoping to contact the Tenant Duty Council tomorrow to get further council. I imagine that's our best option. Do you have any suggestions for support or presentation to the board. I feel like I'm back in finals cramming for my early morning exam having missed all the lectures and assignments! Thank you for your time.
Hi: There are certain basic facts that need to be determined here. Is there one lease or are there multiple tenancies? Did the landlord create a rooming house by renting to 5 individuals who happen to know each other? Was the proper lease used? A lot would be revealed by looking at the Form N4, the lease, and the L1 application. It is odd that the tenants (other 4 boys) would not have had notice of the N4 nor of the application that would have been mailed to the house by the Landlord and Tenant Board. The fact that each member of the household paid the rent individually to the landlord raises a question of the intent and whether there really is a joint and several liability. Why did the landlord never mention rent arrears to anyone? Did the landlord chase the non-paying tenant only---and if so, what does that tell you about the landlord's understanding of the nature of the lease.
DeleteYou may or may not get an adjournment at the hearing. It depends if you can demonstrate--on the face of it--that there is a serious question about the nature of the lease, notice, and joint and several liability. Duty counsel, if experienced, should be able to quickly identify these issues and if there is something there then an adjournment should be possible.
If the case proceeds (adjournment refused) and/or it is clear that that there is one lease and that everyone is jointly and severally liable for the whole of the rent, then the boys have a decision to make. They will be entitled to void the eviction by paying the rent arrears and then paying the ongoing portion of the 5th boy for the remainder of the tenancy. They can (and should), then look for a replacement roommate who picks up the slack from the boy who moved out. Or, if the can afford it and would like to turn that boy's room into a "Study" then so be it.
If affording it is just out of the question then they may want to allow the tenancy to terminate pursuant to the LTB's order (or negotiate a termination date) and move out. That is probably the least practical option.
For the period of time that the non-paying roommate occupied the premises and for a reasonable period of time after he has vacated you can sue him in Small Claims Court for the unpaid rent. That would be a relatively easy claim to win. For the upcoming months of his portion of rent the remaining boys would have to demonstrate serious efforts to replace the boy who has left and a Court should award the ongoing rent for at least a month or two. After that it will get a bit dicey. If the boys decide to not replace the roommate then the roommates portion will end with the date that he moved out.
Good luck
Michael K. E. Thiele
P.S. The LTB can order payment plans, especially for arrears.
Hi Michael,
ReplyDeleteI rent out a two bedroom unit in house, originally to two individuals. One person left and I signed a lease transfer document which 'assigned' the lease to a new tenant. The new tenant, after a couple of years, has just told me that he is moving out. They are currently looking for someone new to move in. The rent I charge is well under current market value but I would not feel ethically right about starting a new tenancy with a dramatic rent increase for the original tenant due to the current economic climate.
What path do you recommend that I take regarding the creation of a new lease, lease transfer/assignation or otherwise?
Thanks very much for your time and impressively thorough answers.
Hi:
DeleteBased on what you describe I'd recommend that you refuse a lease transfer to a new replacement tenant. Instead, simply continue on with the current lease and let the original tenant remain liable for the rent which s/he can pay by getting a contribution from a roommate (the "roommate" being the person who replaces the "new tenant").
The foregoing can happen--whether you like it or not as your consent is not required. The lease remains in the name of the original tenant and the new tenant. While the "new tenant" likely wants his name removed from the lease you are not required to consent to that unless the tenancy is also terminated. You may choose to "release" the new tenant in the sense that you won't pursue him if rent isn't paid or if damage is done but you are not required to do so.
What you likely do not want to do is to enter into another lease transfer. I think, what you are describing and what you are doing when you sign the lease transfer is to take the existing lease and swap out one tenant for a new tenant but maintain the same terms. While this is fine to do (nothing wrong with it), by doing this you are stretching out the possible length of the tenancy at the same rent. Once the lease transfer is done--either the original tenant or the new tenant could leave and the tenancy would still continue--and with a low rent to your detriment.
For now, I'd be inclined to simply let the tenancy run with the original tenant at the original rent. Make sure to take advantage of your rent increase rights (2.2% in 2020) to keep the rent to a reasonable level.
Good luck
Michael K. E. Thiele
www.ottawalawyers.com
Thanks so much for your reply, Michael! My concern with this approach is that the original tenant is likely the one that will stay 'forever'. If it is entirely in his name, won't that protect him from the possibility of a lease termination at any point in the future? It seems to me that when one person terminates their tenancy (which sounds easy to get when a roommate departs for greener pastures) it gives me an 'out'--an opportunity to terminate the whole lease and raise rent to fair market value (even if the original tenant stay). Not sure if I have this wrong?
DeleteThanks again!
Hi: The original tenant has the right to continue the lease "forever" subject to any lawful termination rights you have. There is nothing in the process of swapping out one name for another name that gives rise to an opportunity to terminate the lease. All I see, in swapping out names, is that you give tenancy rights to a new person on the same old lease. If your original tenant decides to leave, or dies then the new tenant continues the lease on the same terms because they are a tenant. If you don't swap in a new name then the continuation of the tenancy relies entirely on the original tenant staying in possession or not dying (the morbid reference to dying simply because that automatically terminates the lease 30 days after death if there is no co-tenant or spouse of the tenant).
DeleteI think you are looking at this from the view that if there are two tenants then any one of the two has the right to terminate the tenancy on notice. I like the logic of this but it would require a co-tenant to serve you with an N9 (Notice of Termination). You would accept that N9 as terminating the tenancy and then apply to the LTB to evict the remaining tenant as an unauthorized occupant after the termination date in the N9. Would the LTB terminate? I think they should--but I really don't know if they actually would. There are arguments against this--none of which convince me--but they're out there. If the tenant leaving doesn't serve a Notice of Termination (N9) then they remain on the lease as a tenant but simply are not in possession. If they are comfortable with their name remaining on the lease (trusting the remaining tenant) then they might just leave and do nothing. If they do nothing you don't get the opportunity to try to "accept" the N9 termination and don't get to try to evict the unauthorized occupant.
Michael K. E. Thiele
www.ottawalawyers.com
Wow Really great blog with lots of good information.
ReplyDeleteI am a relatively new landlord based in Toronto (not living at the rental). My lower unit is rented, and my upper unit is newly available for rent. My father has a longtime friend/tenant who can afford the rent but only with the aid a roommate.
As the owner, which is more risk adverse
a. Issue Separate Lease agreements to both tenants.
b. Lease agreement for the prime tenant (dad's friend) - who then obtains their own roommate (with or out a sublease)?
Side question - can the upper unit be considered a boarding rental if the owner does not reside at the address of the rental, but the houses 4 occupants total.
Thanks so much
Hi: I understand from your question that you're looking to minimize your risk (i.e. risk averse) and presumably that risk is not getting paid the rent and not having any recourse to get it if it is unpaid (i.e. the tenant is judgment proof). This really is a question about tenant selection and whether the tenant you're considering fits the tenant selection criteria that you've set up taking into account the Human Rights Code directions respecting tenant selection. You're starting out with the knowledge that the applicant can't afford the unit without a roommate. This suggests that your tenant poses a financial risk. To minimize that risk landlords will normally look for a guarantor or a co-tenant with a better credit profile. With a roommate you would be looking to make that roommate a co-tenant on the same lease--not a separate one because you want the two people together to be jointly and severally liable for the full amount of rent. With two separate leases each would be responsible for the rent on their own lease and not for the totality of rent for the entire unit. Two separate leases would also create a "rooming" house scenario which causes you further aggravation if the two of them start to fight or have issues with each other as it becomes your problem to solve the problem between your two separate tenants.
DeleteThe notion of renting to your dad's friend and just leaving it up to him to find a roommate is something you could do. There isn't a sublease with the roommate. It is a roommate agreement between your dad's friend and the roommate. This doesn't help you at all and creates no responsibility for the rent between the roommate and yourself. You are basically hoping and trusting that your dad's friend (who can't afford the place) will succeed in finding a roommate in time, that the roommate is a good choice and actually pays him, and that you get paid the rent and that your place isn't damaged by someone who can't even afford the rent.
Your side question is a bit confusing. I presume you're asking whether the unit can be exempt from the Residential Tenancies Act. The exemptions (the main ones) are in section 5 of the RTA. Of those, the most common exemption is in section 5(i) which is sharing a kitchen and/or bath with the owner. The circumstance you describe will not entitle you to that exemption.
Your side question might also be about "rooming houses". It is possible to create rooming houses--unintentionally and illegally. If you want to start renting bedrooms and thereby create a rooming house (bedrooms are the unit--the rest of the house is common area), you should most definitely check with the City to see if your plans (for that specific address) are permitted. Landlords sometimes get themselves in quite a mess when they create an illegal rooming house that they can't shut down (though required to do so) because the tenants of the rooming house have the protection of the Residential Tenancies Act.
Good luck
Michael K.E. Thiele
Good afternoon Mr. K.E. Thiele,
ReplyDeleteThank you for supporting tenants in Ontario by providing your knowledge as a lawyer in this blog; there appears to be a wealth of helpful information here that I suspect has helped many.
I'm not sure if you are still actively managing this blog, but if so, I would greatly appreciate any insight into the following scenario:
Three of four young professionals signed as co-tenants on a lease. One left some months ago, and I took her room as a sublet. Now two more co-tenants are also vacating - at the appropriate time at the end of their lease. This leaves one tenant on the lease who is remaining.
Our landlord is demanding a fee of one months rent ($2,000 or so the four of us split) as an "administration" fee to draft a new lease. RCT confirmed this was not legal (we suspected a violation of RCT 134 a) ). The landlord replied it was covered under RTA 95 and in our lease. I don't think she is covered by RCT, but if specified in a signed lease, is that binding?
The landlord stated a new lease is mandatory with two co-tenants removing themselves from the lease, and is implying she is not considering re-assigning one (despite us never missing a payment, maintaining the property and respecting noise bylaws) - effectively kicking I and the other tenant out of the property at the end of the lease.
Is the maintenance fee, and a mandatory new lease legal? Additionally, if I would like to join as a co-signer/co-tenant, can this be done so in the existing lease or in a addendum?
Thank you once again for your support and consideration,
Alex
HI Alex, You are correct to be suspicious. There is no legitimate circumstance where a landlord charges $2000 as an administration fee. The Residential Tenancies Act is very clear about additional charges and basically prohibits all such charges except in the narrowest of circumstances (and you are not describing any of those exceptions). I was reading and trying to follow your comment/question and interpret it as follows: there is one single lease originally with 3 tenants on a lease. The 4th occupant with the original 3 was perhaps only a roommate. Of the 3 original tenants on the lease 2 came and went. And then replacements came and went. However, there remains to this day one of the original tenants on the lease in the rental unit---or alternatively, there remains to this day one of the new persons who swapped out with one of the original tenants with the landlord's consent and a written swap out on the lease was made recognizing the new person as a tenant and removing the old tenant.
DeleteThe key understanding is that there is currently at least one actual tenant on the lease in the premises. Everyone else in the rental unit (call it a sub-let or whatever you like) is simply a roommate of the actual tenant. The "sub-letters" are not actually "sub-letters"--they are roommates whose possession and occupancy of the rental unit relies on the fact that an actual tenant occupies the rental unit.
Your landlord likely now wants a new lease, probably to update the rent to a new market rent. The landlord has likely realized that swapping in new people for old people on the lease has resulted in the lease terms remaining static, the tenancy continuing, and the landlord being denied the opportunity to raise the rent to actual market rent levels. The landlord wants this to stop.
Unless you all agree, the landlord can not force you to pay a fee or sign a new lease. This presumes of course, that there remains an actual tenant on the lease in the unit. If there is no original sitting tenant in the rental unit and "everyone" occupies based on some notional assignment/sub-let--well then you may have a problem. If there is no original tenant in the rental unit then it is arguably an unauthorized transfer and all persons in the unit are unauthorized occupants. In such a circumstances--section 100 RTA starts to kick in (read it and the following sections) and you will see that the landlord can seek to evict everyone in the unit--subject to strict requirements. One option is that a new lease be signed with the new people or unauthorized occupants. The lease can be on new terms. However, those terms still need to be lawful and it is not lawful to charge an administration fee of $2000.00. Of course, if you don't pay and you are unauthorized occupants the landlord may seek to evict you and refuse to enter into a lease. If that is the scenario you may wish to be a little trickier about how and when you object. Note that the RTA will allow you to bring applications for reimbursement of illegal charges even if you paid those charges voluntarily.
Good luck.
Hi Michael,
ReplyDeleteI have a situation that is common but still not covered clearly in the RTA. I have two tenants who both signed a lease. The 1yr lease is month to month starting in September. One of them wants to move out and they have a friend that he wants to transfer the lease over to.
They have asked if the friend passes the background checks, would I be open to having him move in.
I’m assuming the tenant that wants to move out, also wants to no longer be on the lease. I want to make sure that I am doing the right thing but I am confused about two things I’ve read in the RTA and from asking other landlords.
1. I read that leaving and bringing in a new tenant requires permission and the landlord has the right to refuse for a legitimate reason. Such as the new person fails the background check. But does this only apply to single occupancy not co-tenants? I can’t figure that out.
2. In another section and from other landlords I’m hearing that tenants don’t need permission and I can’t say no to whoever they bring in. I also can’t do a check on the new person because they are a “guest”.
But, if the second scenario is true in my case then the tenant who is leaving will still be stuck with his share of the accountability in the lease agreement. I’m pretty sure that he doesn’t want that because he asked to transfer his lease.
If the first scenario is accurate, then I can say no and end the tenancy or, say yes and…if the tenant who is leaving wants his name off the lease can I terminate the existing lease agreement and create a new one with the new tenant and the current tenant who wants to stay, or if they want, put one person on what would also be a new lease?
I’m trying to figure out if I need a new lease agreement to remove the current tenant from the current agreement. Is that legal to do? Or, Is the tenant who wants to leave stuck with his name on the lease until the other tenant gives notice? If I start a new lease agreement, even if they ask for one, can it backfire and I can get in trouble with the LTB? I own property with family and we are “co-tenants”. My understanding is that you can’t just scratch out a name and write in a new one. A new agreement is required.
Is it legal to ask to do a background check on the potential new tenant? Even if they offered, can I do it without getting in trouble with the LTB?
Just not sure how to proceed. I can’t figure out which scenario we fit in or how to respond to my tenants. 🤷🏼♀️
Thank you in advance for your help!
Jenni
Hi Jenni,
DeleteThis is an incredibly difficult question and the law still lacks clarity on what the rules are. I have not seen any useful decisions from the LTB and those that touch on this issue (typically in the context of signing N9 Notices) dodge the issues.
The problem you describe arises from the fact (I think) of residential tenancies being indeterminate tenancies. The lease never ends unless lawfully terminated.
A problem arises with an indeterminate lease when there are two or more tenants signed onto a single lease and one or more of the tenants wish to terminate and move and the others wish to remain. What becomes of the tenancy agreement? If everyone agrees (landlord and all the tenants) then it is easy. You can create a new lease, amend, change, remove--all of this is easy if there is agreement. It tends to be easier to get to an agreement if the rental unit is partially exempt from rent control as the landlord can raise the rent any percentage. It is more complicated when the rent is below market and the landlord would like to terminate the tenancy and start afresh with a new lease at market rents.
You do not have to agree to swap out an existing tenant for a new tenant. In fact, if you have below market rents you might to make sure that you don't agree as you will have a tenancy that never ends if you keep swapping out old tenants for new tenants on the same lease.
Refusing to swap out an old tenant for a new tenant means that the old tenant does remain liable for the rents and all damages etc., until the tenancy agreement terminates. This is true even if the tenant moved out a long time ago. The Ontario Landlord and Tenant Board will not recognize a single tenants attempt to terminate their interest in a tenancy by serving an N9 Notice of Termination. The LTB takes the position that an N9 must be signed by all tenants in order to terminate a tenancy. I believe this is nonsensical and creates an unfortunate "forever" liability for a tenant who wants to leave. Ironically it is easier under this system to get a divorce than it is to leave a roommate relationship.
What often happens is that a leaving tenant simply leaves. The remaining tenant decides to bring in a new person and that person becomes a roommate. The roommate has no rights as a tenant. You can not object to this and have no control over it (exceptions exist in condominium situations). For roommates there would be no basis for a background check. It would be useless anyway as you can't use the background check to evict.
Could you sign a brand new lease with one of the existing tenants and a new person? Yes, but I would recommend having the old tenants sign an N9 or N11 and formally terminate the old lease. You should then be able to enter into a new lease on new terms and new rent with one old tenant and one new tenant. I imagine that most of the time you will have no hassle. What becomes problematic/antagonistic is if the remaining tenant wants to retain the lower than market rent of the old lease. Then the question becomes whether the old tenant can challenge the lawful rent of the new lease at the LTB. I don't have an answer for that.
Most of the time the legal aspects of these issues are never resolved. Things just happen. A tenant moves out, a new person moves in, there isn't any real problem and that becomes "normal". If by chance the former of your tenants (the one who moves out) serves you with an N9 or asserts a termination of their tenancy then, I think, you are called upon to file an application to terminate the tenancy for unauthorized transfer of occupancy within 60 days of becoming aware of the termination or intention to transfer the lease. If you do not act to terminate (there is caselaw on this point), then it can be held that there is a deemed assignment of the lease from the prior two tenants to one of the former tenants and the new person on the same terms as the old lease.
Good luck
Michael Thiele
www.ottawalawyers.com