In Ontario, if your primary tenant moves out and leaves an unauthorized roommate behind, you have a strict 60-day window under Section 100 of the RTA to file an A2 application with the LTB for eviction. If you miss this deadline, or if you accept rent money from the occupant, they automatically become a legal tenant.
Roommate situations are incredibly common in university hubs like Kingston and Waterloo, as well as expensive markets like Toronto. Often, only one person signs the official lease with the landlord, and that primary tenant brings in a roommate to split the costs. Legally, the landlord has no relationship with this roommate. The problem arises when the primary leaseholder decides to move out and terminate their tenancy, but their roommate simply refuses to leave. 🚪
In Ontario, this leftover roommate is legally classified as an “unauthorized occupant.” Landlords frequently make critical administrative errors in these situations that inadvertently grant the occupant full tenancy rights. The Residential Tenancies Act (RTA) provides a very specific, ticking clock for landlords to reclaim their property. If you do not act swiftly and correctly, you could find yourself stuck with a tenant you never screened or approved.
Step-by-Step Process to Remove an Unauthorized Occupant
Evicting an unauthorized occupant bypasses the standard N-series eviction notices. You must apply directly to the Landlord and Tenant Board. Here is how to navigate Section 100 of the RTA safely.
Step 1: Confirm the Primary Tenancy is Legally Terminated
An occupant only becomes “unauthorized” after the official tenant legally ends the tenancy (e.g., by signing an N9 or N11 form) and vacates the premises. As long as the primary tenant’s lease is still active, they are legally allowed to have roommates, and you cannot interfere. 📝
Step 2: Do Not Accept Rent Money
This is the most crucial step. If the primary tenant leaves and the leftover occupant offers you the monthly rent, do not accept it. In Ontario, accepting rent from an unauthorized occupant establishes an “implied tenancy.” Once you take their money, they are legally your tenant, and the 60-day eviction window instantly closes.
Step 3: Track the 60-Day Deadline
Under Section 100 of the RTA, you have exactly 60 days to apply for an eviction. The clock starts ticking the moment you discover (or ought to have reasonably discovered) that the primary tenant vacated and left the occupant behind. Write this date on your calendar immediately. 📅
Step 4: Attempt to Negotiate (Optional)
If the occupant has a good job and good credit, you may actually want to keep them. You can offer them a brand-new Ontario Standard Lease at current market rent. If they sign it, the problem is solved. If they refuse the new price, you must proceed with the eviction.
Step 5: File an A2 Application with the LTB
Do not serve an N4 or N5. Instead, file an A2 Application (Application about a Sublet or an Assignment) with the Landlord and Tenant Board. You must specify that the application is under Section 100 regarding an unauthorized occupant. Name the occupant directly on the form if you know their name.
Step 6: Enforce with the Sheriff
Once the LTB grants the eviction order, the occupant must leave. If they still refuse, you cannot change the locks yourself. You must take the LTB order to the local Court Enforcement Office and hire the Sheriff to physically perform the eviction.
How Much Does it Cost in Ontario? 💰
Reclaiming your rental unit from an unauthorized occupant involves several administrative fees:
- LTB Filing Fee: $201 CAD to file the A2 application by paper, or $186 CAD online.
- Compensation: While you wait for the hearing, the LTB can order the occupant to pay “compensation for use and occupation” (which is different from accepting “rent”), ensuring you are not entirely out of pocket.
- Sheriff Fees: Hiring the Court Enforcement Office to execute the eviction order currently costs roughly $315 CAD, plus potential mileage.
- Paralegal Fees: Using a professional to ensure you don’t miss the 60-day window usually costs $800 to $1,500 CAD.
| Scenario After Primary Tenant Leaves | Legal Status of Occupant in Ontario |
|---|---|
| Landlord applies to LTB on Day 45 | Unauthorized Occupant. Can be evicted via A2. |
| Landlord waits until Day 65 to act | Becomes a Legal Tenant automatically. A2 will be denied. |
| Landlord accepts rent on Day 10 | Implied Tenancy created. Becomes a Legal Tenant immediately. |
How Long Does the Process Take?
The landlord’s deadline to file is a strict 60 days. Once the A2 application is filed, you are at the mercy of the LTB scheduling system. Getting an A2 hearing typically takes 3 to 6 months in Ontario. During this time, the occupant remains in the unit, which is why requesting an order for “compensation for use and occupation” at the hearing is vital to recover lost income.
Frequently Asked Questions (FAQ)
Can I just change the locks when they go to work?
Absolutely not. Even though they are unauthorized, locking them out without an LTB order and the Sheriff is an illegal eviction. You can be fined heavily by the Rental Housing Enforcement Unit (RHEU).
What if I don’t know the occupant’s name?
If you do not know their legal name, you can file the A2 application against “Unauthorized Occupant.” The LTB will still process the application and issue the eviction order for the unit.
Is this the same as an illegal sublet?
It is similar but legally distinct. An illegal sublet occurs when the primary tenant moves out temporarily without permission. An unauthorized occupant situation occurs when the primary tenant permanently terminates their lease and leaves.
Can I pursue the original tenant for the occupant’s damage?
Yes. If the primary tenant allowed the person to move in, the primary leaseholder remains legally responsible for any property damage caused by their roommate while the primary lease was active.
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