What are my rights as a spouse of the tenant?
Article written by: Mahnoor Fatima, Student-at-Law
The following is legal information and not legal advice. If you need further information or need legal advice, please call our Intake Line at 416-441-1764 ext. 1.
My spouse was the only tenant named on the lease and they passed away. Am I permitted to remain in the rental unit even though my name is not listed as a tenant?
Subsection 3 (1) of Ontario Regulation 516/06 (the “Regulation”), made under the Residential Tenancies Act, 2006 (the “Act”), states 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”, unless the spouse vacates the unit within 30 days after the tenant’s death.
This means that if your spouse passes away, you are deemed to be the tenant for that rental unit, so long as you do not move out 30 days after your spouse’s death and you are not already living elsewhere. You therefore do not need to be listed as the tenant on the lease, and it also does not matter if you are listed as an occupant: you are still afforded the rights of a tenant.
What if we were not legally married, am I still allowed to stay?
Under the Act,
“spouse” means a person,
(a) to whom the person is married, or
(b) with whom the person is living in a conjugal relationship outside marriage, if the two persons,
(i) have cohabited for at least one year,
(ii) are together the parents of a child, or
(iii) have together entered into a cohabitation agreement under section 53 of the Family Law Act.
So long as you satisfy any one of the three criteria listed under subsection (b), the Regulation would apply, you would be entitled to the tenant rights of a spouse and permitted to stay in the unit.
What if my spouse moves out. Am I permitted to stay in the unit?
The Regulation says you can stay if:
- your spouse was the tenant named on the lease;
- they moved out without properly ending the tenancy through notice to or agreement with the landlord; and
- the rental unit is your main home.
If all three of these criteria are satisfied, then you are treated legally as the tenant, and you have the right to continue living in the rental unit, even though your name was not originally listed on the lease as a tenant.
Are there any exceptions?
Situations where you are not covered by the Regulation include the following:
- if the rental unit is in a building with three or less residential units and the landlord lives in the building;
- if you leave the rental unit within 60 days after your spouse (i.e. the listed tenant) leaves the unit; or
- if you live in rent-geared-to-income housing.
Do you have any recommendations?
To prevent potential issues, tenants should inform the landlord from the onset if their spouse lives with them in the rental unit. In the event of the tenant’s death, the spouse of the tenant should inform the landlord of who they are and of their intention to remain in the unit as the tenant. Finally, it is advisable to get all of this confirmed in writing from the landlord.
What if there are rent arrears?
If you are intending to remain in the unit, take care to confirm there are no rent arrears for the rental unit when the named tenant passes away, as you would be held responsible for these payments. If there are rent arrears and you still wish to remain in the unit, you should inform the landlord of your intention and try to reach a payment agreement. If the rent arrears are too expensive to pay off in one, lump sum payment, try and work out a payment plan with the landlord, and keep a written record of your correspondence.
What if I have follow-up questions?
For more information or legal advice, please call our Intake Line at 416-441-1764 ext. 1.