If a Tenant Gets a Roommate, Can the Landlord Legally Pursue Rent From the Roommate?

If a Person Moves Into a Rental Unit, Thereby Becoming a Roommate of the Existing Tenant, Then That Person Is Known As An Occupant Rather Than a Tenant. As An Occupant Rather Than a Tenant, the Occupant Is Without the Contractual Obligations As Exist Between the Landlord and Tenant.

Understanding the Legal Difference Between a Tenant and Occupant Including Relevant Rights and Duties

Residential Lease Document When a person moves into a rental unit after entering into a lease arrangement, such a person legally becomes a tenant. If the person then brings a third-party person to live in the rental unit, such as a boyfriend or girlfriend, the third-party person becomes an occupant rather than a tenant.

The Law
Contractual Obligations

Defining who is a tenant versus who is merely an occupant was well explained within the Small Claims Court case of Dick v. Robinson, 2021 CanLII 48732 wherein it was said:

[4]  The Plaintiffs are owners of a rental property in Lindsay Ontario, (herein the “Landlords”) and come before me today on an assessment hearing to recover unpaid rent, reimbursement for damages done to the rented premises (the “Premises”), and for recovery of unpaid utility bills that were allegedly the burden of the defendants as occupying tenants under a written residential tenancy lease (the “Lease”) effective between May 1, 2020 and April 30, 2021.

[5]  It is noteworthy that the defendant Victoria Robinson (“Robinson”) is the only party to the signed Lease.  The defendant Andrew Truax (“Truax”) is not a signatory to the Lease, and hence I disagree with the plaintiffs’ characterization of him as a tenant of the Premises.  Truax is certainly an occupant of the Premises at the behest of Robinson, but that does not make Truax a tenant, in the legal sense.  I guide the reader to the Landlord and Tenant Board Interpretation Guideline 21 (“Guideline 21”), currently available at:

https://tribunalsontario.ca/documents/ltb/Interpretation%20Guidelines/21%20-%20Landlords%20Tenants%20Occupants%20and%20Residential%20Tenancies.html

[6]  Guideline 21 outlines with clarity those elements that make Truax an occupant, and not a tenant.  This result comes about because Truax is not a signatory to the Lease: he moved in, and remains in, the Premises with Robinson, at the behest of Robinson.  The following excerpt from Guideline 21 succinctly explains the practical consequence:

“Since an occupant or a roommate is not a tenant, that person has no contractual relationship with the landlord, irrespective of whether the occupant or roommate pays a fee to the tenant or subtenant to reside in the rental unit.  Where the occupant pays a portion of the rent for the unit directly to the landlord, and defaults in payment of his or her share of the rent, the tenant remains liable to the landlord for payment of the entirety of the rent irrespective of any agreement between the tenant and the occupant with respect to payment of rent.”

In the Dick case referenced above, legal action against an occupant was dismissed for lack of a contractual relationship between the landlord and the occupant.  Essentially, the decision reasoned, a landlord is unable to pursue an occupant for obligations that legally exist only between the landlord and tenant.  Of course, the law is a two-way street and, equally, an occupant is unable to pursue a landlord for obligations that legally exist only between a tenant and a landlord.  In the case of Gold v. Nead, SWL-37587-19-RV (Re), 2020 CanLII 117246, a person deemed an occupant was determined as lacking rights that participate in a Landlord Tenant Board hearing.  Specifically it was said:

1.  KR, an occupant of the rental unit alleged that she was not reasonably able to participate in the original hearing of January 30, 2020 because she did not receive a Notice of Hearing from the Board and was therefore not informed that the hearing would take place that day.

2.  In support of the request to review order SWL-37587-19 which terminated the tenancy on February 14, 2020, KR stated that she was not named in the Notice to End a Tenancy Early for Non-payment of Rent (N4) and Application to Evict a Tenant for Non-payment of Rent and to Collect the Rent the Tenant Owes even though she has been a Tenant in the unit since November 2018.

3.  KR testified that she dated the Tenant and moved into the rental unit with him in November 2018. The Tenant who passed away on February 3, 2020, did not inform KR about the hearing or that he has not been paying the rent. KR is not named in the tenancy agreement. even though she paid half the rent. KR also stated that the Tenant was a recipient of financial assistance from the Ontario Disability Support Program and the organization paid the rent directly to the Landlord while she gave her portion to the Tenant. KR has not paid any rent to the Landlord since the Tenant’s passing.

4.  The Landlord testified that Ontario Disability Support Program (ODSP) paid the rent directly to him on behalf of the Tenant and he never received a payment from KR. He also stated that the Tenant moved into the rental unit in April 2019 and is the sole Tenant named in the tenancy agreement.

5.  Based on all the evidence, there is no dispute that KR did not sign the tenancy agreement and has never paid the rent directly to the Landlord. At best, KR is an occupant of the rental unit and not a Tenant who must be named in the Landlord’s notice of termination and application to evict.

6.  That KR is an occupant/roommate, and not a Tenant covered by the Residential Tenancies Act, 2006 (Act), is consistent with the Landlord and Tenant Board Interpretation Guideline 21 which states:

Occupants and Roommates

There is no definition of "occupant" in the RTA.

For the purposes of proceedings at the Board, an "occupant" may be considered to be a person who is not a tenant but who lives in a rental unit as their principal place of residence. An occupant may be authorized or unauthorized depending on the facts of each case.

Similarly, there is no definition of "roommate" in the RTA.

A "roommate" is a person who, like an occupant, shares a room with a tenant or shares a rental unit or part of it with a tenant.

In the ordinary circumstance, a person may reside as an occupant or a roommate in a rental unit with or without the consent of the landlord provided that the tenant also resides in the rental unit.

In some cases, a written tenancy agreement may provide who is an occupant of the rental unit. However, even where the written tenancy agreement does not specify who is an occupant, or, where there is no written tenancy agreement, a person may be an occupant of a rental unit provided that person has the consent of the tenant to live in the rental unit and the person's occupancy of the rental unit does not result in overcrowding within the meaning of section 67 of the RTA.

An occupant or roommate lives in the rental unit at the invitation and at the indulgence of the tenant and under the terms of the tenancy. An occupant or roommate cannot file an application relating to the tenancy against either the landlord or the tenant in proceedings at the Board.

Since an occupant or a roommate is not a tenant, that person has no contractual relationship with the landlord, irrespective of whether the occupant or roommate pays a fee to the tenant or subtenant to reside in the rental unit. Where the occupant pays a portion of the rent for the unit directly to the landlord, and defaults in payment of his or her share of the rent, the tenant remains liable to the landlord for payment of the entirety of the rent irrespective of any agreement between the tenant and the occupant with respect to payment of rent.

Where an occupant pays part of the rent directly to the tenant, the occupant does not become a tenant. Where the occupant pays part of the rent directly to the landlord, the payment of rent does not automatically result in the occupant becoming a tenant. A determination as to whether that occupant is a tenant will depend upon the facts in each case.

As noted, a finding that a person is an occupant means that the occupant has no protection or rights in proceedings at the Board under the RTA. Any rights that the person may have outside the RTA must be sought in a court.

7.  Therefore, on the basis of the submissions made in the request, I am not satisfied that KR was not reasonably able to participate in the proceeding because as an occupant, she has no contractual relationship with the Landlord.

Independent Responsibility

With the above said, it is important to appreciate that a lack of contractual obligations fails to mean that a lack of any legal responsibility exists between a landlord and an occupant; and accordingly, it is emphasized that only the contractual obligations are lacking; however, civil liability and even criminal sanctions may arise if a landlord engages in misconduct directed toward an occupant or an occupant engages in misconduct directed toward a landlord.  For example, if an occupant damages the rental unit or other property of the landlord, the landlord may bring a lawsuit against the occupant.  Of course, the lawsuit would need commencement within a court of proper authority, such as the Small Claims Court, rather than the Landlord Tenant Board.  Equally, if a landlord were to damage the property of an occupant, the occupant may bring a lawsuit against the landlord; and in such circumstance, such a lawsuit would proceed in a court rather than the Landlord Tenant Board.

Summary Comment

Legally, there is a technical difference between a tenant and an occupant.  A tenant will have contractual obligations owed to the landlord and a landlord will have contractual obligations owed to a tenant; however, a landlord and occupant are without contractual obligations owing to each other.

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