Unauthorized Occupancy (LTB)
- 1 Residential Tenancies Act, 2006
- 2 TSL-85613-17 (Re), 2017 CanLII 59997 (ON LTB)
- 3 TSL-59362-15 (Re), 2015 CanLII 29765 (ON LTB)
- 4 TSL-66636-15 (Re), 2015 CanLII 99151 (ON LTB)
- 5 TSL-52244-14 (Re), 2015 CanLII 99161 (ON LTB)
- 6 TSL-66069-15 (Re), 2015 CanLII 93482 (ON LTB)
- 7 CEL-62624-16-RV (Re), 2016 CanLII 100308 (ON LTB)
100 (1) If a tenant transfers the occupancy of a rental unit to a person in a manner other than by an assignment authorized under section 95 or a subletting authorized under section 97, the landlord may apply to the Board for an order terminating the tenancy and evicting the tenant and the person to whom occupancy of the rental unit was transferred. 2006, c. 17, s. 100 (1).
- (2) An application under subsection (1) must be made no later than 60 days after the landlord discovers the unauthorized occupancy.
- (3) A landlord who makes an application under subsection (1) may also apply to the Board for an order for the payment of compensation by the unauthorized occupant for the use and occupation of the rental unit, if the unauthorized occupant is in possession of the rental unit at the time the application is made. 2006, c. 17, s. 100 (3).
103 (1) A landlord is entitled to compensation for the use and occupation of a rental unit by an unauthorized occupant of the unit.
- (2) A landlord does not create a tenancy with an unauthorized occupant of a rental unit by accepting compensation for the use and occupation of the rental unit, unless the landlord and unauthorized occupant agree otherwise.
104 (1) If a person occupies a rental unit as a result of an assignment of the unit without the consent of the landlord, the landlord may negotiate a new tenancy agreement with the person.
- (2) If a subtenant continues to occupy a rental unit after the end of the subtenancy and the tenant has abandoned the rental unit, the landlord may negotiate a new tenancy agreement with the subtenant.
- (3) Sections 113 and 114 apply to tenancy agreements entered into under subsection (1) or (2) if they are entered into no later than 60 days after the landlord discovers the unauthorized occupancy.
- (4) A person’s occupation of a rental unit shall be deemed to be an assignment of the rental unit with the consent of the landlord as of the date the unauthorized occupancy began if,
- (a) a tenancy agreement is not entered into under subsection (1) or (2) within the period set out in subsection (3);
- (b) the landlord does not apply to the Board under section 100 for an order evicting the person within 60 days of the landlord discovering the unauthorized occupancy; and
- (c) neither the landlord nor the tenant applies to the Board under section 101 within 60 days after the end of the subtenancy for an order evicting the subtenant.
7. The Landlord’s legal representative argued that the application should not be dismissed because the Landlord sought legal advice after he discovered the unauthorized occupants. I take this to mean that the Landlord wanted me to find that the limitation period in section 100(2) runs from the date he retained counsel; however, this is not what the provision says. The language in section 100(2) is clear that the 60-day limitation period runs from the date the Landlord became aware of the unauthorized occupants. I do not have discretion to alter the limitation period in section 100(2) or to tailor it to the Landlord’s circumstances. Accordingly, the application is barred by section 100(2).
8. In the application, the Landlord named four individuals as “Tenants”. However, at the hearing, the Landlord testified that these individuals are actually the unauthorized occupants and they are not tenants. The Landlord testified that a person who used to occupy the commercial unit on the ground floor of the residential complex permitted the occupants to live in the rental unit without his consent. The Landlord did not name this individual as a party/tenant in the application.
9. Based on the Landlord’s testimony, I find that this application is not properly before me because it does not identify a tenant of the rental unit. All applications before the Board must identify at least one landlord and one tenant. I cannot consider the merits of this application without a tenant being named. I also cannot grant the relief that the Landlord is asking for because it involves terminating the tenancy and there is no tenancy before me.
1. It is undisputed that the Tenant transferred the occupancy of the rental unit to the Occupant in a manner that was not authorized by the Residential Tenancies Act, 2006 (the 'Act'). The Landlord did not enter into a tenancy agreement with the Occupant.
2. The issue to be determined by the Board is when did the Landlord discover the unauthorized occupancy. This is important because if the Landlord has not filed this application within 60 days after discovering the unauthorized occupancy in accordance with subsection 100(2) of the Act, there is a deemed assignment of the rental unit pursuant to subsection 104(4).
7. The definitive meaning of the term “discover” is provided by the Supreme Court of Canada in the case of Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), (1986) 2 S.C.R. 147 [‘Refuse’] at 224, where Justice Le Dain wrote that “….a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence…”.
8. While the Landlord may have been made aware as early as October, 2014 that RH was actually residing in the rental unit on behalf of the corporate Occupant, it is irrelevant.
9. The wording of subsection 100(2) ties the start of the limitation period to the discovery of the “unauthorized occupancy” not the occupancy itself. Tenants are entitled to have guests, roommates, and undertenants. The triggering event in subsection 100(2) is not someone else moving in; it is when the landlord discovers there has been an unauthorised transfer. Here, the Landlord gave permission in advance to the Tenant to enter into a subtenancy agreement with someone else; but that is not what the Tenant did.
10. So the question here is when did the Landlord discover that the transfer that occurred was not one that the Landlord authorized?
13. The issue to be determined by the Board is whether the Landlord filed this application within sixty days of discovering the unauthorized occupancy as required by subsection 100(2) of the Residential Tenancies Act, 2006 (the 'Act'). Subsection 100(2) states: “An application under subsection (1) must be made no later than 60 days after the landlord discovers the unauthorized occupancy.
14. It was the evidence of the Landlord that on September 17, 2015 the Tenants filed for compensation with Airbnb and that is when the Landlord knew that the Tenants rented the unit as Airbnb.
15. Based on the evidence before me, I find that the Landlord did not file this application within sixty days of discovering the unauthorized occupancy as required by subsection 100(2) of the Act. I say this because there was evidence before me that the Landlord knew or ought to have known that the Tenants were renting the unit as Airbnb in June 2015. I say this specifically because of the letter dated June 15, 2015 to the Landlord that states “We would like to bring to your immediate attention that your Suite 306, is being used for Airbnb (short-term rentals) purposes.” The Landlord was also copied on a letter on June 15, 2015 that the Property Management was aware that the Tenants were subleasing the unit for Airbnb purposes.
16. In my view, the Landlord did not do its due diligence after June 15, 2015 to bring this application to the Board after being notified that there was an unauthorized occupant.
1. The issue to be determined by the Board is whether the Tenant transferred occupancy of the rental unit without the Landlord’s consent; and moreover, when did the Landlord discover the unauthorized occupancy. This is important because if the Landlord did not file the application within 60 days after discovering the unauthorized occupancy in accordance with subsection 100(2) of the Residential Tenancies Act, 2006 (the 'Act'), there is a deemed assignment of the rental unit pursuant to subsection 104(4).
2. The residential complex comprises of three high rise building with approximately 1800 rental units.
3. The Landlord and the Tenant signed a lease agreement for a two bedroom unit in January 1994 and the tenancy commenced on March 1, 1994. On the lease it indicated that FG was an occupant of the unit.
12. Based on the evidence before me, I find that the Landlord learned that the Tenant vacated the unit on or about April 29, 2014 when the Landlord received the letter from the Tenant. Neither the Tenant nor FG provided sufficient evidence to establish that the Landlord knew or ought to have known that the Tenant moved out in 2001. I am not of the view that because FG filled out the work order requests or paid the rent to the Landlord that this established him as a tenant or that the Landlord knew the Tenant moved out. It was the evidence of the Landlord that staff do not pay attention to whether it is tenants or occupants that fill out the work order request or paid the rent. The Tenant and FG are brothers and have the same last name so it would not be unreasonable that the Landlord would have accepted the work order or the rent payment from FG.
13. I find it more likely than not, that the Landlord did not know that the Tenant had moved out in 2001 and transferred the occupancy. I say this because the residential complex is a large high rise building, and the Landlord saw the Tenant throughout the years. The Tenant has many family members living at the residential complex and visits about once a month. As the Landlord would see the Tenant in the building, the Landlord would have no reason to believe that the Tenant was not living in the unit. I also say this because of the Notice of Rent Increase (NORI) that the Landlord issued to the Tenant. I note that “T” prepared the NORI in the years 2010, 2011 and 2012; and YY prepared the NORI in 2013 and 2015. According to both the Tenant and FG, “T” knew that the Tenant moved out in 2001 and that FG continued to live in the unit, presumably as the tenant. If so, it does not make sense why “T” would continue to address the NORI’s to the Tenant and not to FG. Also, FG confirmed that he received the NORI throughout the years, but he did not provide sufficient explanation as to why he did not notify “T” or YY that the NORI was not addressed to him.
20. Based on the evidence before me, I find on the balance of probabilities that the Landlord became aware of the occupant on or about June 30, 2015 when the Landlord received the Tenant’s notice to terminate the tenancy. I say this for a number of reasons. Both the Tenant and the Occupant were residing in the residential complex and were seen frequently by the superintendent. There is no dispute that neither the Tenant nor the Occupant notified the Landlord of their arrangement until the Tenant sought to terminate her tenancy. Given that the Occupant was originally providing assistance to the Tenant, it was not out of the range of possibilities that she would make rent payments or contact the superintendent on behalf of the Tenant.
21. As a result, I find that the Landlord has filed this application within the 60 day time period set out in subsection 104(4) of the Act. Furthermore, I find that the Occupant is in fact an Unauthorized Occupant.
4. The Landlord’s A2 application was filed on November 7, 2016 within 60 days of discovering the unauthorized occupancy as required by subsection 100(2) of the Residential Tenancies Act, 2006 (the 'Act').
6. The Tenant passed away on September 22, 2016. He is the only tenant listed on the written tenancy agreement that was presented at the hearing. There were no other tenants residing in the unit when the Tenant died.
7. Pursuant to subsection 91(1) of the Act, the tenancy terminated on October 22, 2016 (30 days after the death of the Tenant).
8. Subsection 91(2) of the Act states that a Landlord has to provide “reasonable access to the rental unit” to the executor, or if there is no executor, a member of a tenant's family “for the purpose of removing the tenant’s property.” That obligation to provide access to the unit lasts for only 30 days after the Tenant’s death. After that date, the Landlord is free to dispose of any property left in the unit.
9. Subsection 91(2) of the Act allows for only reasonable access to the unit. It does not provide the executor or the family with the right to live in the unit during the 30 day period after the death.
11. The Tenant’s two sons had come to stay with their father for a while shortly before his death. The have remained in the rental unit since their father’s death.
15. The Tenant’s sons are not tenants. They have not paid any rent to the Landlord. They do not meet the definition of a tenant in section 2 of the Act. They have not paid rent in exchange for the right to occupy the rental unit. They have been living in the unit rent free since November 2016 and they have no tenancy agreement (neither written, verbal or implied) with the Landlord.
16. It could be argued that the Tenant’s sons are simply trespassers or squatters in the rental unit. If that is the case, the Landlord does not require an eviction order from the Board and they can simply change the locks to the unit immediately.
17. However, section 39 of the Act prohibits a Landlord from recovering possession of rental unit that is “subject to a tenancy” unless the Board has ordered an eviction or the tenant has abandoned or vacated the unit.
25. However, in situations where someone is still occupying the rental unit, a preferable approach is a broad interpretation of section 100 of the Act.
26. This A2 application is made under section 100 of the Act. Section 100 of the Act permits the Landlord to apply for an eviction order “if a tenant transfers the occupancy of a rental unit to a person” (emphasis added) in a manner that was not authorized by the Act.
27. Although I recognize the Tenant himself did not intentionally transfer occupancy of the rental unit to his sons, the effect of his death was that occupancy of the rental unit was transferred to his sons.