Ask Member Support: Occupant or tenant?
Question:
One of our tenants has moved his daughter and her children into his unit on an emergency basis. The daughter is on the waitlist under Special Priority Policy (SPP), so this is considered a temporary arrangement. We have agreed that this is not an Add-On situation, and the daughter and her family are being treated as guests under extenuating circumstances. Ontario Works has suggested that the daughter can contribute to the rent in her father’s unit. We are unsure as to how to classify the daughter; if she starts to pay a portion of rent and is included in the father’s rent calculation, would she then be considered a tenant? What is the difference between ‘occupant’ and ‘tenant’?
Answer:
Extended guest stays, especially where extenuating circumstances are involved, and distinguishing between an ‘occupant’ and a ‘tenant’ can be complicated. We recommend that you seek a professional legal opinion, but there are some factors you should consider before you do so.
Under Section 28 of HSA Regulation 367/11, RGI households are required to report changes in information including household composition and income. In this case, the household has met this obligation and you have documented that you are making an exception to your guest policy. Every person who has been added to the household and whose income is included in the RGI rent becomes an authorized occupant.
Here’s where it gets tricky: the Residential Tenancies Act, 2006 (RTA), doesn’t define “occupant” status. A hearing to decide on the matter would consider the facts on a case-by-case basis. The Landlord and Tenant Board’s (LTB) Interpretation Guideline 21 (Landlords, Tenants, Occupants and Residential Tenancies) states:
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.
A person who is considered to be an occupant will not have rights in any LTB proceedings related to the RTA.
Communicate clearly with the daughter that she is an occupant and not a tenant and make sure that she understands that she will not have rights to the unit if her father were to move out or otherwise cease to occupy the unit. Since the daughter is on the waitlist under SPP, this shouldn’t become a long-term concern for you. Nevertheless, be sure to document each step in the process, including your conversations with the tenant and his daughter to ensure you have done your due diligence in the case that confusion arises about the daughter’s occupancy status.
Have questions about guest policies, occupancy vs. tenancy, and/or rights under the RTA? Contact us at member.support@onpha.org. We’re always happy to hear from you, and to help!
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