Rules for Tenants & Spouses

by Rita Chrolavicius, Staff Lawyer

Legalese is a column of general information and opinion on legal topics by the lawyers of Rural Legal Services, Box 359, Sharbot Lake, ON, K0H2P0, 613-279-3252, or 1-888-777-8916. This column is not intended to provide legal advice. You should contact a lawyer to determine your legal rights and obligations.

The new Residential Tenancies Act, 2007, came into force on January 31, 2007. One of the changes is the treatment of spouses who remain in a rental unit when the main tenant dies or moves out.

Under the previous legislation, if a tenant died and the spouse remained in the apartment, the surviving spouse did not have the automatic right to stay in the rental unit. There were court cases that found that the surviving spouse was not a tenant and could be locked out of the unit by the landlord (Belleau v. Victoria Park Community Homes).

Under the new legislation, if a tenant of a rental unit dies and there are no other tenants at the rental unit, the tenancy shall be deemed to be terminated 30 days after the death of the tenant.

The Regulation under the new legislation provides that if a tenant of a rental unit dies and the rental unit is the principal residence of the spouse of that tenant, the spouse becomes the tenant unless the spouse vacates their unit within 30 days of the death of the tenant. Interestingly, the legislation does not make it a requirement that the surviving spouse notify the landlord of whether or not they intend to move. The landlord still has some protection as the landlord would know whether the next rental payment has been made by the surviving spouse.

The ability of spouses to continue to stay in a rental unit applies to tenants who vacate a rental unit without giving a notice of termination and without entering into an agreement to terminate the tenancy. In these cases, the spouse who remains in the rental unit should advise the landlord that he or she intends to remain in the rental unit. If the landlord is unaware of the spouse’s intention to remain in the unit, the landlord can apply to the Landlord and Tenant Board for an eviction order.

There are some cases in which the new rules do not apply. The new rules do not apply to social or subsidized housing. They also do not apply to care homes. If the rental unit is in a building containing more than three residential units and the landlord resides in the building, spouses of tenants who vacate the unit without notice do not automatically have the right to continue to reside in the unit. Individuals should seek legal advice about their own particular situation.

Remember: Ontario legislation can be found on the internet at http://www.e-laws.gov.on.ca. Further information about the Residential Tenancies Act can be found through Community Legal Education Ontario on the internet at: http://www.cleo.on.ca/

[The Advocacy Centre for the Elderly (ACE) is a Legal Clinic Serving Low-Income Seniors. This article was published in the Fall 2006/Winter 2007 edition of the ACE Newsletter. We wish to thank ACE for allowing us to share it with you.]