Death of Tenant

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-26
CLNP Page ID:	241
Page Categories:	Contract Law, Leases, & Sub-Letting (LTB)
Citation:	Death of Tenant, CLNP 241, <5d>, retrieved on 2024-11-26
Editor:	Sharvey
Last Updated:	2022/09/28

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Residential Tenancies Act, 2006, S.O. 2006, c. 17

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).

Reasonable access

(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)

Jemiola v. Firchuk, (2005) O.J. No. 6085

13 We are satisfied that there was evidence before the Tribunal that entitled it to conclude that an implied tenancy agreement did not arise between the appellant and the landlords. The Member was not prepared to characterize the single payment of rent and the July letter as amounting to an agreement to create a tenancy. The landlord and his agents acknowledged that Mr. Jemiola was living in the unit, but the legislation does not prohibit tenants from having room-mates, family and friends living with them. The Member found, correctly in our view, that this does not necessarily confer on them the status of tenant.

14 We find no error in law in the Tribunal's reasoning. Its finding that Mr. Jemiola was not a tenant and that no tenancy agreement was created are findings of fact or mixed fact and law, from which no appeal lies.

CEL-62624-16-RV (Re), 2016 CanLII 100308 (ON LTB)

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.

CEL-61627-16-RV (Re), 2016 CanLII 100383 (ON LTB)

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.

CET-03004-10 (Re), 2010 CanLII 67977 (ON LTB)

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.

TSL-75726-16 (Re), 2016 CanLII 104352 (ON LTB)

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.

TSL-20311-11 (Re), 2011 CanLII 71482 (ON LTB)

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.

TSL-04527-10 (Re), 2010 CanLII 48786 (ON LTB)

3. The Will provided that “in the event that (the Tenant) survives me to retain (the rental unit), … he may reside there so long as he pays all the running expenses including taxes on the said property for a period of ten years unless he wishes to give up the said residence at any earlier date.” It went on to say that “ten years from the date of my death, or earlier if (the Tenant) decides to give up such residence, the property will be sold and the proceeds will fall into the residue of my estate.” It further provided an option for the Tenant to purchase the rental unit during the ten year period that the Tenant did not exercise.

4. The Tenant’s partner died on May 24, 2000, the Landlords were appointed Estate Trustees With a Will and the application before me was filed on April 23, 2010, just prior to the conclusion of the ten year period. It was uncontested that the Tenant paid “the running expenses” during that time.

(...)

9. Second, the parties to the agreement must have been landlords and a tenant as understood by the Act. Is the Tenant a tenant as the term is defined in the Act? Subsection 2(1) of the Act says a tenant “includes person who pays rent in return for the right to occupy a rental unit”. Rent can take almost any form: “whether the rent reserved is payable in money or through some other medium has no particular significance”, said the Court of Appeal in Metro-Matic Services Ltd. v. Hulmann (1974), 1973 CanLII 791 (ON CA), 4 O.R. (2d) 462, adopting a previous decision of the same court in Re B.A. Oil Co. and Halpert, 1959 CanLII 125 (ON CA), [1960] O.R. 71. The definition of “rent” in the Act is similarly inclusive, where rent “includes the amount of consideration paid or given or required to be paid or given by or on behalf of a tenant to a landlord.”

10. The Tenant argued the payments to the Landlord of “running expenses” should be seen as consideration akin to rent and that it fits within the meaning of the term in the Act. I find that argument convincing; even though the Landlords were presumably not profiting from the arrangement, the Tenant was paying them consideration of a sort in exchange for the right to occupy the rental unit. I find the Tenant is a ‘tenant’ as defined in the Act.