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Death of a Tenant

keysWho has rights to the apartment unit?

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.[1]

What this means is if the tenant was sole tenant (i.e. the only tenant on the rental agreement) and without a spouse, then the tenancy continues for 30 days after the tenant’s death.  During this time the landlord is obligated to give access to the executor or members of the family for the purpose of removing the tenant’s property.  After the 30 days, the Landlord may seize the contents of the apartment to either sell it, or retain it.[2]

What if the deceased tenant had a spouse living with them, who was not on the lease?  Even though the spouse was not a tenant (i.e. is not on the lease) the spouse has 30 days to decide if he or she would like to continue on as an authorized tenant.  That means that at the end of the 30 days, if the spouse has decided to stay, they will take on all of the rights and obligations of the deceased tenant, including the continuing of their rental agreement.[3]  In other words, the spouse becomes a legal tenant.

The RTA’s definition of a tenant includes: “a person who pays rent in return for the right to occupy a rental unit and includes the tenant’s heirs, assigns and personal representatives…”  Perhaps the most ambiguous of terms in the provision of the act is the word “heirs”. One would think that if an adult son were living with his mother, whose sole name was on the rental agreement, that if the father died, the son (as heir) would be able to continue the tenancy.  This was tested in Jemiola v. Firchuk, [2005] O.J. No. 6085.  The Divisional Court stated “the definition of “tenant” is broad and inclusive and should be broadly and liberally construed…however, a child who was an occupant of the rental unit in which his mother was the tenant, who wanted to remain in the rental unit after his mother’s death…is not a tenant.”

[1] Residential Tenancies Act 2006, c. 17, s. 91 (1)

[2] Ibid s.92

[3] Ontario Reg. 516/06, s. 3 (1)

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