Matrimonial Home (Possession)

O. Reg. 516/06: GENERAL

3. (1) If a tenant of a rental unit dies and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2 (1) of the Act unless the spouse vacates the unit within the 30-day period described in subsection 91 (1) of the Act. O. Reg. 516/06, s. 3 (1).

(2) If a tenant vacates a rental unit without giving a notice of termination under the Act and without entering into an agreement to terminate the tenancy, and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2 (1) of the Act. O. Reg. 516/06, s. 3 (2).

(3) Subsection (2) does not apply if any one or more of the following criteria are satisfied:

1. The rental unit is in a building containing not more than three residential units and the landlord resides in the building.

2. The spouse vacates the rental unit no later than 60 days after the tenant vacated the rental unit.

3. The tenant who vacated the rental unit was not in arrears of rent and the spouse fails to advise the landlord, before an order is issued under section 100 of the Act, that he or she intends to remain in the rental unit.

4. The tenant who vacated the rental unit was in arrears of rent, the landlord gives the spouse a notice in a form approved by the Board within 45 days after the date the tenant vacated the unit, and the spouse fails, within 15 days after receiving the notice,

i. to advise the landlord that he or she intends to remain in the rental unit, or

ii. to agree in writing with the landlord to pay the arrears of rent.

5. The tenant who vacated the rental unit was in arrears of rent, the landlord does not give the spouse a notice referred to in paragraph 4 within 45 days after the date the tenant vacated the unit, and the spouse fails, before an order is issued under section 100 of the Act,

i. to advise the landlord that he or she intends to remain in the rental unit, or

ii. to agree in writing with the landlord to pay the arrears of rent. O. Reg. 516/06, s. 3 (3).

(4) Subsections (1) and (2) do not apply to,

(a) a rental unit described in section 7 of the Act;

(b) a rental unit that is in a care home to which Part IX of the Act applies; or

(c) a rental unit to which section 6 of this Regulation applies. O. Reg. 516/06, s. 3 (4).

CEL-75051-18-RV (Re), 2018 CanLII 88534 (ON LTB)

4. Although the Landlord’s L3 application is based on a written agreement to terminate, I am not satisfied that there is a genuine tenancy or that the Board has jurisdiction to resolve the dispute between the Tenant and the Occupant over the property (the Occupant claims it is the matrimonial home).

18. In accordance with section 202 of the Act, I am not satisfied that the Landlord and the Tenant are acting in good faith. The real substance of the agreement they signed to terminate the alleged tenancy is an attempt to remove the Occupant from the home to sell the property and/or benefit the Tenant’s position in the family law proceeding.

19. Furthermore, even if there was a genuine landlord/tenant relationship, then subsection 104(4) of the Act would be applicable. That subsection deems an assignment of the tenancy to an occupant if a landlord does not take certain steps within 60 days.

20. The Landlord has been aware since at least September 2017 that the Tenant is no longer living at or in possession of the property. He is not permitted to access the property due to the domestic dispute. The Landlord claims he has not paid any “rent” since that time. Therefore, he has not maintained a connection to the property by paying the “rent”. He has no current ability to access or control the property. Therefore, he is no longer in possession of the property.

HOL-01347-17 (Re), 2017 CanLII 60040 (ON LTB)

6. Pursuant to s. 47.2(3) such a notice must be given to the Landlord at least 28 days before the date of termination specified on the face of the notice. Here, the Tenant back-dated her notice meaning she delivered it to the Landlord after the date of termination on it. So it is not valid and the second named Tenant has not severed the joint tenancy agreement that is the subject of this application.

7. The second named Tenant also argues she is no longer a tenant because she moved out. Section 47.2 would be meaningless if any tenant could simply sever a joint tenancy by the unilateral act of moving out. Rather, what she is trying to argue is that she is no longer in possession so the Board has lost jurisdiction over her.

8. The concept of being in possession is fact based. If a tenant moves out, severs all connection to a unit, no longer has any control over the comings and goings in that unit and sufficient time has passed, the Board may well make a finding that a tenant is no longer in possession.

9. That is not what has happened here. The Tenants have experienced marital breakdown and separated. The second named Tenant appears to be staying with family, her children still live in the unit, and she is still paying some of the bills associated with the unit. More importantly perhaps, there is no separation agreement between the parties so there has been no legal disposition of the matrimonial home.

10. Given the fact situation here both Tenants remain in possession of the rental unit within the meaning of the Act.