When you are a residential landlord in Ontario, there is a complex set of rules that you must follow or risk being found liable by the Landlord and Tenant Board, the best way to ensure your rights are protected is to talk to an experienced housing lawyer about your case.
As a residential landlord, one of the most upsetting and difficult parts of the job is when one of your tenants passes away. Many small landlords are confused about their responsibilities in such a case.
The Law, When a Tenant Dies
There are understandably certain portions of the Residential Tenancies Act (RTA) that serve to protect the rights of a tenant and their next of kin in the event of their passing. According to s. 91 and 92 of the RTA the following rules apply where a tenant has died, unless they have a living spouse in the unit:
- A Landlord can dispose of unsafe or unhygienic items in the unit immediately
- The tenancy shall be deemed to have terminated 30 days after the death of the tenant regardless of if there was a lease in place or not
- During that 30 day period, all property must be maintained, other than unsafe/unhygienic items
- A landlord must allow the estate executor or family member where there is no executor reasonable access to personal property in the unit
- After the tenancy is terminated the landlord may sell, retain or dispose of any remaining property
- Within 6 months if an executor or family member where there is no executor makes a claim for property or sale proceeds of items the landlord must give over those proceeds, minus any coverage for arrears of rent and reasonable moving/storage fees
The Tenant Has a Spouse
Often, two spouses will live in a rental unit, but only one of the spouses will be on the lease. In such a circumstance, if the spouse on the lease passes away, the regulations of the RTA deem the spouse a tenant. The tenancy will continue as normal, unless the surviving spouse does not wish to be deemed a tenant, in that case they would need to vacate the unit within 30 days.
Despite following the legal requirements of the RTA, some landlords may find themselves in trouble, if a family member claims a landlord took something from the unit improperly. There are a number of best practices that you can follow to minimize that risk:
- As soon as possible, a landlord should try and contact the tenant’s family
- Take pictures with a witness of what is in the unit
- Change the locks, (ensure you are not blocking access for the family/executor)
- Ask to see/retain a copy of the will, if there is a named executor, ensure you are dealing with that person
- Have the executor/family member sign a form saying they took control of all of the items
- If items are unclaimed and sold, keep receipts
There are certain types of tenancies that are subject to a different set of rules, such as care home units and mobile/trailer homes, in such cases the rules of what to do upon the death of a tenant, differ significantly. If you are a residential landlord, the best way to protect yourself is to be well informed, and in the case off a dispute, to retain legal counsel as soon as possible. Mehdi Au LLP has experienced housing lawyers on staff who would be happy to meet with you to discuss your case.
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