Sometimes, a tenant rents an entire complex and invites his or her spouse and child(ren) to live together. Other times, a tenant may rent out the spare room to someone else. If you are in one of these situations, it is very important to determine your status because you will not be protected by the Residential Tenancies Act, 2006 (RTA) if you are not a tenant.
Spouse of the Tenant
If the spouse of the tenant does not sign the tenancy agreement, the spouse is not a tenant. Instead, the spouse is an occupant and has a right to occupy the rental complex.
If you are a spouse as an occupant, your legal rights are not protected by the RTA. For example, if the landlord is not maintaining the rental complex, you cannot start a legal proceeding against the landlord at the Landlord and Tenant Board (LTB). Instead, the legal proceeding shall be initiated by your spouse the tenant.
On the other hand, the spouse may become a tenant under the following certain circumstances:
- When the tenant dies but the spouse wishes to continue residing in rental complex¹, or
- When the tenant vacates the rental complex without giving the notice to the landlord but the spouse wishes to continue occupying the rental complex².
Last but not least, it is also important to determine who is a spouse under the RTA. The RTA recognizes both married spouses and common-law partners. The definition of a common-law partner under the RTA³ includes two persons that:
- have cohabited for at least one year,
- Are together the parents of a child, or
- Have together entered into a cohabitation agreement under section 53 of the Family Law Act.
Roommate of the Tenant
It is very common that a tenant rents out a spare room to another person who resides in the same rental complex as a roommate. The roommate pays his or her portion of fees to either the tenant or the landlord. In this case, the roommate is not a tenant. Instead, it is essentially a contractual relationship between the roommate and the tenant.
The roommate is not responsible for the rent payment to the landlord even he or she might have already been paying his or her portion to the landlord. Likewise, the landlord cannot evict the roommate because the roommate is not a tenant. Certain exceptions may apply.
However, if the roommate has any issues with the rental complex or the tenant, the roommate cannot bring the issues to the LTB. Instead, the issues should go to Small Claims Court if the claims are less than $25,000.
It is important to note that the roommate is not a subtenant and this is not subletting under the definition of the RTA.
Occupants of the Rental Complex
Anyone who occupies the rental complex with the consent of the tenant may become an occupant. In the above cases, spouses and roommates are all occupants. In addition, the tenant’s family members who reside in the same rental complex are occupants too.
It should be noted that they become occupants of the rental complex even without the consent of the landlord. In cases where the landlord refuses to consent, it does not necessarily result in an unauthorized occupant with an exception that the occupants have caused overcrowding under the definition of the RTA⁴.
Occupants are not tenants and they are not protected by the RTA. Furthermore, they cannot live in the rental complex permanently. Occupants must leave when the tenant has either terminated the tenancy agreement or been evicted. If the occupant does not vacate, he or she becomes unauthorized. The landlord then has a right to apply to the LTB to evict the occupant.
When the landlord finds the occupant still resides in the rental complex after the tenant has left, the landlord has 60 days to file an application for an eviction order of the occupant. If the landlord misses the 60 days deadline, the occupant will then become the tenant.
- Subsection 3 (1) of Ontario Regulation 516/06.
- Subsections 3 (2) and (3) of Ontario Regulation 516/06.
- Subsection 2(1) of the Residential Tenancies Act.
- Section 67 of the Residential Tenancies Act.