Death of Tenant
- 1 Residential Tenancies Act, 2006, S.O. 2006, c. 17
- 2 CEL-62624-16-RV (Re), 2016 CanLII 100308 (ON LTB)
- 3 CEL-61627-16-RV (Re), 2016 CanLII 100383 (ON LTB)
- 4 CET-03004-10 (Re), 2010 CanLII 67977 (ON LTB)
- 5 TSL-75726-16 (Re), 2016 CanLII 104352 (ON LTB)
- 6 TSL-20311-11 (Re), 2011 CanLII 71482 (ON LTB)
91 (1) If a tenant of a rental unit dies and there are no other tenants of the rental unit, the tenancy shall be deemed to be terminated 30 days after the death of the tenant. 2006, c. 17, s. 91 (1).
- (2) The landlord shall, until the tenancy is terminated under subsection (1),
- (a) preserve any property of a tenant who has died that is in the rental unit or the residential complex other than property that is unsafe or unhygienic; and
- (b) afford the executor or administrator of the tenant’s estate, or if there is no executor or administrator, a member of the tenant’s family reasonable access to the rental unit and the residential complex for the purpose of removing the tenant’s property. 2006, c. 17, s. 91 (2).
7. Pursuant to subsection 91(1) of the Act, the tenancy terminated on October 22, 2016 (30 days after the death of the Tenant).
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.
10. The tenancy was terminated as of July 24, 2016 by operation of law. Subsection 91(1) of the Act states that the tenancy is deemed terminated 30 days after the death of the tenant.
11. However, the definition of a tenant in section 2 of the Act includes the tenant’s heirs, assigns and personal representatives. The letter from the PGT suggests that there is no known next-of-kin or heirs. The Landlord did not identify any particular person/heir who could be considered to be a tenant. The Landlord seems to suggest that the estate is the Tenant’s heir. Even if that is correct, the estate is not a tenant.
12. Presumably, an executor, the estate trustee/administrator or the PGT could be considered to be the Tenant’s personal representative. Or, if the Landlord’s argument is accepted, the estate could be considered an heir. However, that does not automatically make them a tenant. The entire definition of a tenant must be considered. There must be payment of rent in exchange for the right to occupy the unit. Neither the estate nor the PGT paid any rent or other form of consideration or had the right to occupy the unit.
13. If the definition of a tenant were interpreted otherwise then any heir in a tenant’s will could be deemed to be a tenant of the rental unit. Merely being an heir or personal is not enough to be considered a tenant.
14. The PGT’s letter establishes that the PGT is not in possession of the rental unit. They have no key to the unit and could not access the unit without the Landlord’s assistance to enter the unit.
15. Furthermore, neither the estate nor the PGT had the right to occupy the rental unit after the Tenant’s death. This is clear from the wording of subsection 91(2) of the Act.
16. The wording of subsection 91(2) of the Act establishes that an executor, estate administrator or next of kin is not in possession of the rental unit. They only have restricted rights to access the unit. As stated in the November 4th order, that subsection permits reasonable access and only for the purpose of removing the Tenant’s property. Subsection 91(2) of the Act does not permit full, unrestricted access or possession of the rental unit.
21. I disagree. The tenancy terminated by operation of law 30 days after the Tenant’s death. The Tenant, by his death, has vacated or abandoned the rental unit. Therefore, section 39 of the Act does not prohibit recovery of possession of the unit since the Tenant has vacated or abandoned the unit.
22. If the legislation intended that a landlord had to apply to the Board for possession of the unit after the death of a tenant, then that requirement would be set out in the Act. There is no provision in section 91 or 92 or elsewhere in the Act for that type of application.
9. The Landlord changed the locks to the rental unit on July 2, 2009, after O.R. had removed all of the Tenant’s belongings from the rental unit.
10. Technically, the Landlord altered the locking system on a door giving entry to the rental unit or residential complex without giving the Tenant replacement keys. However, the locks were changed after the Tenant passed away. As a result, it was not possible for the Landlord to give the Tenant a replacement key. [Tenant Representative’s name removed] was not entitled to a key to the rental unit. She was not a tenant or an occupant and had no right to access the rental unit after July 2, 2009, under subsection 91(2) of the Residential Tenancies Act, 2006 (the ‘Act’), since all the Tenant’s belongings had already been removed.
5. Although the Landlord applied for termination of the tenancy as well as per diem compensation, the tenancy terminated automatically thirty days after the Tenant’s death pursuant to section 91 of the Residential Tenancies Act, 2006 (the ‘Act’). It raised the question as to whether a tenancy could be transferred to an unauthorized occupant by death, but the Divisional Court appears to have accepted such a scenario as a possibility in Jemiola v .Firchuk, (2005) O.J. No. 6085.
6. Subsection 100(2) of the Act would have required the Landlord to apply within sixty days of discovering the unauthorized occupancy, which was not done. The Landlord is, however, exempt pursuant to paragraph 7(1) of the Act as a direct descendent by regulation of the predecessor landlord to which subsection 7(1) of the Act would have applied.
7. I therefore find that the Tenant transferred occupancy of the rental unit to the Occupant without the consent of the Landlord and that his eviction should be ordered.
6. At the hearing the Occupant led evidence with respect to the unfairness of his being removed from the rental unit. He testified he will be homeless if evicted and filed a petition with the Board signed by many of the residents of the residential complex saying the Occupant met the criteria required to live in the residential complex. Unfortunately, for the Occupant, none of that is relevant to the issues before me. In most eviction applications this kind of evidence would be relevant to relief from eviction under section 83 of the Act. But that provision only applies when there is an application before the Board to evict a tenant. It does not apply when the application involves the eviction of an unauthorised occupant.
7. As a result, the Landlord is entitled to the order requested. In response to my questions, the Landlord indicated it was prepared to waive the Landlord’s cost of filing the application in consideration of the Occupant’s circumstances. As a result, no order shall issue with respect to costs.