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.