“Breaking up” with your apartment: Options for when you’re not on the lease
My partner and I recently split up, and they moved out of our apartment. I love this apartment and would like to stay, but the lease is only in their name. What can I do?
Unfortunately, the stress caused by a breakup or separation can be exacerbated by Toronto’s limited rental market. In addition to the typical nuisances of moving, securing a comparable unit may not be possible. To complicate matters further, Toronto’s lack of affordable housing encourages more couples to live together, causing situations like this to occur more frequently.
Generally, an individual that lives in a rental unit without being on the lease is an occupant. Unlike the tenant on the lease, an occupant has no contractual relationship with the landlord and has no rights or protection under the Residential Tenancies Act, 2006 (the “RTA”). Consequently, if the tenant is no longer in possession of the rental unit, a remaining occupant becomes an “unauthorized occupant”, and a landlord may apply to the Landlord and Tenant Board (“LTB”) to evict them. However, if the occupant is the tenant’s spouse, the situation and the options available to the occupant are different.
The occupant in this scenario may be considered a tenant under the RTA if they are the listed tenant’s spouse. Subsection 3 (1) of Ontario Regulation 516/06 made under the RTA outlines that if:
- The tenant vacated the apartment without giving a valid notice of termination and without entering into an agreement with the landlord to terminate the tenancy; and
- The apartment is the principal residence of the tenant’s spouse
Then the spouse is included in the definition of “tenant” under the RTA. Accordingly, the occupant is legally entitled to remain in the apartment as a tenant.
A spouse wishing to exercise this entitlement and remain in the apartment should advise the landlord of this intention. Otherwise, they may risk the landlord applying to the LTB to try to evict them as an unauthorized occupant. It is important to ensure that there are no outstanding rent arrears for the apartment because the spouse would now be responsible for the apartment’s rent. If there are rent arrears, it is advisable to communicate with the landlord so the parties can reach a corresponding payment agreement.
However, there is an exception to this entitlement. If the apartment is in a building with less than four apartments and the landlord also resides in the same building, then the spouse would not be permitted to stay after the tenant vacates the apartment.
Under the RTA, the term “spouse” includes married individuals and non-married individuals living in a conjugal relationship who have either lived together for at least one year, have a child together, or have entered into a cohabitation agreement under section 53 of the Family Law Act. Accordingly, a non-married individual may still be considered a spouse and a tenant in the method described above.
If an individual does not meet the definition of “spouse” as outlined above and remains in the rental unit after the tenant leaves, they are in a more precarious situation. As previously noted, a landlord can apply to the LTB for an order evicting unauthorized occupants. However, a landlord must apply within 60 days of discovering the unauthorized occupancy. If the landlord does not do so, they will be deemed to have consented to an assignment of the rental unit to the occupant, and the occupant will become the tenant.
Instead of waiting to see whether the landlord applied to the LTB, the remaining partner can try asking their landlord to assign their former partner’s lease to them and effectively take over the tenancy. However, a landlord does not have to accept this and may be more inclined to find new tenants and charge a higher rent. Additionally, by making this request, an individual draws the landlord’s attention to the situation and may instigate the eviction process.
It is important to note that just because a landlord applies to the LTB does not mean the occupant is evicted. The LTB will consider the case’s particular facts before making an eviction order, including the landlord’s knowledge of the situation and the characteristics of the occupant. All evictions must go through the LTB; a landlord cannot just lock out an occupant.
In summary, staying in an apartment when you are not on the lease can be difficult and stressful. However, it may be possible, particularly if the remaining partner meets the RTA’s definition of a “spouse”. For clarification or more information about this article, please call the Clinic’s Intake Line at 416-441-1764, ext. 1 – Monday to Friday from 9:00 am to 5:00 pm.