Unauthorized Occupancy (LTB)

Residential Tenancies Act, 2006

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.

TSL-85613-17 (Re), 2017 CanLII 59997 (ON LTB)

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.

TSL-59362-15 (Re), 2015 CanLII 29765 (ON LTB)

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?

TSL-66636-15 (Re), 2015 CanLII 99151 (ON LTB)

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.

TSL-52244-14 (Re), 2015 CanLII 99161 (ON LTB)

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.