It can be frustrating to landlords and property owners to have a singed lease with all of your new tenants details only to return to find they have moved someone else in without permission. How much say-so as landlords do we have about who is living in our rentals? Ottawa lawyer Michael Thiele answers that question, the answers might surprise you.
Tuesday, 6 January 2015
Some landlords attempt to restrict the number of occupants in a rental unit, restrict the number of guests, or they seek to require a tenant to obtain their permission before allowing friends to stay over, or before getting a roommate, or before allowing a romantic partner to move into the rental unit. Landlords will often point to a clause in the lease that states that the tenant is "so and so" and the "only" occupants in the rental unit are the following people.
Where that section about additional occupants is blank the landlord maintains that the tenant is not entitled to have over-night guests, short or long term guests, roommates, or even have romantic partners move in with them. Tenants are often convinced that this is true as the lease itself either explicitly or impliedly makes it appear that the occupants of the rental unit is something that has been contracted to and that the landlord has legally reserved the right to control who lives in the apartment.
Is a landlord allowed to restrict, prohibit, or impose rules (visiting hours, number of visitors, increase rent charges etc.) on who a tenant allows to visit, stay long or short term, move in with as spouses, move in with as romantic partner, move in with just to share expenses? Subject to a few exceptions (social housing)---the answer is a simple "NO".
The fact is that a tenant may have guests, short or long term. The tenant may have as many roommates as he or she pleases, romantic partners, visitors, etc. etc. etc.. The tenant does NOT have to obtain the landlords permission or approval for this and in fact the tenant does not even have to let the landlord know that someone has moved in. The landlord does not have the right to interfere with the tenant with respect to the tenant's guests.
RIGHT TO HAVE GUESTS/ROOMMATES/PARTNERS
No only is the landlord not permitted to restrict the occupants that share the unit with the tenant, the landlord may be held financially responsible for interfering with the tenant's right to have people live in the unit with them. By example, in a case called Cunningham v. Whitby Christian Non-Profit Housing Corp. the landlord served a Notice of Trespass to Property against the fiancée of the tenant purporting to prohibit the fiancée from entering on the property. The Court, in this case, held that the landlord's action constituted a breach of the landlord's obligations to the tenant and the tenant was awarded a 15 per cent rent abatement for the landlord's conduct.
There are numerous examples in the case-law of the Courts and the Landlord and Tenant Board finding such restrictions to be illegal and therefore awarding the tenant compensation. The fact scenarios vary, but a consistent theme is that the landlord does not have the right to restrict, prohibit, or interfere with a tenant's right to have people live with them in the rental unit. In a case called Radokovic v. Stoney Creek Non-Profit Housing Corp, the landlord served a notice of trespass against the tenant's ex-husband banning him from the complex due to his purported abusive and threatening behavior. This was found to be contrary to law regardless of whether there was a "good faith" intention behind serving the Notice of Trespass.
There are numerous other cases where the landlord was found liable to the tenant for rejecting boyfriends/girlfriends, spouses and visitors and it has been routinely held that such restrictions and prohibitions amount to harassment and substantial interference with the reasonable enjoyment of the premises by the tenant. "Reasonable Enjoyment" includes the right to have the full use of a rental unit for all lawful purposes. Having guests, boyfriends, girlfriends, simple roommates, visitors is lawful and therefore part of what constitutes "quiet enjoyment" & "reasonable enjoyment" of a rental unit.
Perhaps one may be inclined to argue that if there is a contractual term in a lease that both parties (landlord and tenant) agree to that the scope of what constitutes a "lawful purpose" has been restricted by contract. The Board appears to address this argument by referencing section 4 of the RTA which essentially operates to make clauses in a lease restricting or limiting occupants or imposing conditions void and unenforceable.
What are the arguments that landlords make? The argument I have heard the most is from landlords who are renting basement apartments or units in small complexes. Landlords will maintain that the rent is "lower" because of an agreement to restrict occupancy of the unit to one person (or two or whatever the case may be). Landlords will argue that having roommates increases the use of hot-water, electricity, utilities generally, and causes increased wear and tear of the rental unit. Some will argue that these burdens entitle the landlord to restrict who is living in the rental unit. No matter how compelling this argument may be---it is not the law.
The next question then, and one that I have gotten from time to time, is whether a landlord may charge an extra $[pick your number] because there is another roommate, occupant or guest living in the unit. The answer is a resounding "no" as there is no legal basis under the RTA to have a fluctuating rent based on the number of people in a rental unit (exception in social housing rules).
So, it is clear from my review of the law that tenants are entitled to have people live and stay with them and the landlord can't do anything about it. Is that right unfettered? Of course not. Tenants are responsible for what happens in their rental unit and they are responsible for the behavior and conduct of their roommates, guests, visitors, etc.. If any of these people cause trouble, cause damage, harass, intimidate, commit illegal acts or anything like that in the rental unit or on the residential complex the tenant can be evicted and held financially responsible for what that person has done.
Further, the right to have guests is not unlimited. If a rental unit becomes over-crowded then the tenancy can be terminated for that reason under the RTA (though it is a little difficult to ascertain what constitutes "over-crowding" in law--see section 67 RTA).
The take away from this article should be that tenants in Ontario have a virtually unrestricted right to have people move in, visit, and stay with them in their rental units. A landlord who tries to restrict that, limit that, charge for it, or impose rules on it--such as visiting hours, will likely be violating the tenants rights and hence could be subject to financial orders and possibly fines if the tenant complains and files an application with the Ontario Landlord and Tenant Board.
Landlord and Tenant Law questions answered for tenants and landlords by Ottawa lawyer Michael Thiele.
Michael K. E. Thiele
It might be tempting to block unwanted room mates and boyfriend/girlfriends from moving in which may put further strain on the facilities you are responsible for. However,their does appear to be a clear risk of interfering with the tenants rights. Operating within the guidelines of the Residential Tenancy Act protects you from having to compensate your renters.
Glenn Brown is owner of My Rental Unit property management and has enjoyed success with multiple unit investing.