chapter 14: parting with possession by the tenant emond montgomery publications 1

CHAPTER 14: PARTING WITH POSSESSION BY THE TENANT

Emond Montgomery Publications 1

Chapter 14: Parting with Possession by the Tenant• Termination by the Tenant• The Difference Between a Sublet and an Assignment

• Subletting• Subletting Process• Practical Advice for Landlords and Tenants• Applications to the Board• Regaining Possession at the End of a Sublet• Landlord’s Remedy for an Unauthorized Sublet


Chapter 14: Parting with Possession by the Tenant• Assignment

• Assignment Process• Application to the Board• Landlord’s Remedies for Unauthorized Assignment

• Death of the Tenant• Abandoned Units and Property• The Unauthorized Occupant


Termination by the Tenant• A tenant does not need a specific cause for termination

• The most important requirement is that the tenant give a written notice of termination (s. 43(1))

• A tenant’s notice must• identify the rental unit,• state the date the tenancy is to terminate, and• be signed by the tenant or the tenant’s agent (s. 43(1))


Termination by the Tenant• The required notice period is 60 days for:

• a fixed-term tenancy• a monthly tenancy• a yearly tenancy (s. 44)

• The notice period is 28 days for:• a daily tenancy• a weekly tenancy


The Difference Between a Sublet and an Assignment

• Under the RTA, almost all tenancies can be sublet or assigned, including statutory month-to-month tenancies

• Subletting occurs when the tenant gives possession of the rental unit to a new tenant for a limited time, after which the original tenant returns to reoccupy the premises

• Assignment occurs when the original tenant assigns the balance of the tenancy agreement to a new tenant, and the original tenant does not intend to return to the unit


Subletting Process• The process of subletting involves the tenant’s requesting the landlord’s permission to sublet the rental unit to another specific person

• The landlord may, and should:• interview the prospective subtenant• perform a reference check to determine whether the proposed subtenant is likely to be a suitable tenant

• The landlord must respect the provisions of the Human Rights Code (HRC)


Practical Advice for Landlords and Tenants• The landlord should ensure that:

• the tenant is aware that, in subletting, the tenant remains responsible for the payment of the rent and the fulfillment of all other tenant’s obligations during the term of the tenancy

• the subletting agreement between the tenant and the subtenant is in writing and includes a termination date that is before the end of the tenant’s tenancy, which gives the tenant the right to occupy the unit on that date

• The RTA makes it illegal for a tenant to:• sublet a rental unit for more than the lawful rent;• collect a fee for subletting; and• require a person to pay for goods or services as a condition of

subletting (ss. 134(3) and 234(1))


Applications to the Board (Sublet)• If the landlord has unreasonably delayed in replying to a

tenant’s request, or if a landlord has refused a sublet or assignment request, the tenant or former tenant may apply to the board for an order that the landlord has arbitrarily or unreasonably withheld consent to a sublet or assignment(s. 98)

• If the board finds that the landlord has unlawfully withheld consent to the sublet or assignment, the board may:• order that the sublet is authorized;• authorize another sublet proposed by the tenant;• order that the tenancy is terminated; or• order an abatement of the tenant’s rent (s. 93(3))


Regaining Possession at the End of a Sublet• The landlord and the tenant may apply to the board for an order evicting the subtenant (s. 101(1))

• That application must be made within 60 days after the end of the subtenancy (s. 101(2))

• No notice of termination is required from the tenant or the landlord to the subtenant, and no ground of termination is required other than the fact that the subtenancy has come to an end (s. 97(5))


Landlord’s Remedy for an Unauthorized Sublet• If a tenant sublets a rental unit without obtaining the landlord’s consent, the landlord may apply to the board for an order evicting the would-be subtenant and the tenant (s. 100(1))

• The landlord must apply within 60 days of discovering the unauthorized occupancy (s. 100(2))


Assignment Process• The RTA contemplates that the tenant may apply for the landlord’s consent to an assignment in one of two ways:• the tenant may ask for the landlord’s consent to assign in principle (that is, without putting forward a specific assignee); or

• the tenant may ask for the landlord’s consent to assign the rental unit to a specific assignee.

• If the landlord refuses consent to any assignment in principle then the tenant can terminate the tenancy


Application to the Board (Assignment)

• If the landlord refuses an assignment to a potential assignee, the tenant can apply to the board for an order that the landlord has arbitrarily or unreasonably withheld consent to the assignment (s. 98(1))

• If the board finds that the landlord has unlawfully withheld consent to an assignment to a potential assignee, it may• order that the sublet is authorized,• authorize another sublet proposed by the tenant,• order that the tenancy is terminated, or• order an abatement of the tenant’s rent (s. 93(3))


Landlord’s Remedies for Unauthorized Assignment• If a tenant assigns a rental unit without obtaining the landlord’s consent to the transfer, the landlord may negotiate a new tenancy agreement with the assignee, which may include a new rent (ss. 104(1) and (3))

• The landlord can also apply to the board for an order evicting the person to whom occupancy of the rental unit was transferred (s. 100(1))

• The landlord must complete the tenancy agreement or apply within 60 days of discovering the unauthorized occupancy, or the unit is deemed to be assigned with the landlord’s consent (ss. 104(3) and 100(2))


Death of the Tenant• The tenancy is generally terminated 30 days after the death of

the tenant (s. 91(1))• If the deceased tenant had a spouse, unless the spouse vacates

the unit within that 30 day period, the spouse will become the tenant and will be responsible for any unpaid rent even if he or she was not named on the lease (s.3(1) of O. Reg. 516/06)

• The landlord may immediately dispose of or sell any property of the deceased tenant that is unsafe or unhygienic (s. 92(1)(a))

• The landlord is required to preserve any of the tenant’s other property for the 30 days until the tenancy is terminated (s. 91(2)(a))


Abandoned Units and Property• A landlord may retake possession of the rental unit if the

tenant has abandoned the unit (s. 39(a))• A rental unit is not considered abandoned if the tenant is

not in arrears of rent, even if none of the tenant’s belongings are in the unit

• The landlord may sell, use, or dispose of abandoned property immediately if the tenant has vacated the unit in accordance with:• a notice of termination (by landlord or tenant),• an agreement to terminate, or• the termination of a superintendent’s unit (s. 41(1))

• If the tenant vacates after an eviction order is enforced by the sheriff, the landlord must hold the property for at least another 72 hours.


The Unauthorized Occupant• If the landlord discovers an unauthorized occupant, the landlord has 60 days to:• negotiate a new tenancy agreement with an unauthorized assignee

(s. 104),• negotiate a new tenancy agreement with an unauthorized

subtenant (s. 104), or• apply to evict an unauthorized assignee or subtenant or an

overholding subtenant (ss. 100 and 101)


chapter 14: parting with possession by the tenant emond montgomery publications 1

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