What Happens When a Tenant Dies in an Ontario Rental?

Introduction & Legal Framework

Hey, Ontario landlords. Welcome to another episode of Cresi’s Landlord Podcast Series. We’re here to make sure that you’re always getting correct information, whatever it is that it may be, something to do with the landlord.

Host Introduction

Doing what we need to do and we’re being great housing providers. Today we’re going to talk about something that definitely doesn’t happen very often, but does happen. And how do you deal with it? What do you do?

What’s the situation? And to talk about that, we’re bringing in a friend, colleague of mine, Gibrian, who is a general practicing lawyer, out in Mississauga. He is a landlord and tenant specialist with real estate involved.

He’s also an investor. They do commercial contracts, estate administration and litigation. And their firm has seven lawyers that cover a whole bunch more. They’re a great one-stop shop for you if you need anything, lawyer, real estate related especially.

He’s appeared in all levels of the Ontario court, including divisional court, appeals of landlord and tenant board orders. He is married, he has two children, he plays hockey, soccer, and hopefully he’s a Leaf fan — yep, he definitely is. I know by looking at him. He’s a landlord himself, as I mentioned, with multiple properties in Ontario and in the U.S.

So he’s here to help guide us and talk about Ontario today, obviously, and remember, all of our conversations are generally speaking about general situations. Every specific situation is as individual as our fingerprints. So without further ado, let me bring out Mr. Malicki-Sanchez, and he’s going to talk to us today about what happens in your rental if the tenant passes away. Gibrian, how are you doing today, my friend?

Initial Steps When Discovering a Deceased Tenant

Awesome. Thanks so much for having me on, Kevin. I’m happy to be here. It’s a very interesting topic.

It’s not top of mind for landlords when they are renting to a tenant, and hopefully it never happens, but if the situation does come up, it’s important to know what a landlord should be doing to protect themselves. I’ve heard of situations where a tenant had passed away for multiple days inside their unit because there wasn’t a big circle of family or friends around them and people didn’t even know. So again, it’s not often or common, but it does happen. So let’s just start with this.

Let’s say I’m a landlord. I have a property, a little condo that I rent out to Susan, and Susan passes away. As a landlord, what do I have to do? What happens? What’s the process?

Right. So in that unfortunate situation, this is governed by Section 91 of the Residential Tenancies Act. And what that says is that the tenancy is automatically terminated after 30 days.

30-Day Property Management Timeline

So the landlord has certain responsibilities that they must fulfill within that 30-day period. Once they discover that the tenant has passed away, the landlord is going to want to make sure that they contact — well, first of all, the police, if they’re the ones who discover the body, so that the police can contact the next of kin of the deceased. If somebody else reaches out to the landlord and lets them know that their family member has passed away, then the landlord should secure the property, because they’re responsible for everything that’s in the property. And the most important thing first is what to do with the body, and it must be treated with respect.

So the next of kin will be responsible for disposing of the body and making the appropriate arrangements for that. If there is no next of kin located, then the police will deal with the body. Now, the landlord is responsible for making sure that the tenant’s property remains safe and secure.

There’s an exception where they have to dispose of anything that’s unsafe or unhygienic immediately. Otherwise, they must provide reasonable access to whoever is responsible for administering the estate to deal with that property and remove it.

Landlord Responsibilities & Estate Rights

They need to ensure that the person who’s coming into the rental unit has the appropriate authority. They can prove that in a couple of ways. If there’s a will that says they’re the executor, then they have the appropriate authority. If there is no will, then you’re going to want to know what their relationship is.

You’re going to want to verify their ID, and you’re going to want to make sure that within the 30-day period, any property that will have to go to the estate has been accounted for. So you’re going to want to go in there and have a first look to make sure that you take an itemized list and photographs of the tenant’s property, because ultimately you’re responsible.

So after the 30-day period, the landlord can retain any of the tenant’s property that’s left behind and not taken by the next of kin or the estate administrator — they could sell the property as well. But if they misappropriate any of the property within a six-month period from the tenant’s death, then the estate can actually claim that property against the landlord, and the landlord will have to reimburse the estate for the value of that property, anything above their own out-of-pocket expenses for selling or storing it. So — sorry, you mentioned two different timelines there. You said something about six months, and you also said responsible for the property for 30 days. So let’s say we’re 45 days in and we now get rid of something — when you’re talking about misappropriating their stuff, that obviously would have to happen in that first 30 days, I would assume.

Yeah, so the estate has that first 30-day period to take care of that stuff. Again, this is all governed by Section 91 and Section 92. Section 92 of the Residential Tenancies Act says that after the 30-day period, the landlord is not liable for any of the property that they disposed of. So the estate cannot go after the landlord.

Multiple Tenant Scenarios

Now let’s take this one step further. That was nice and simple, right? We had one tenant and they passed away in that unit. What if we had a lease agreement with Susan, she passes away, but her son Frank lives in the property as well, but he is not on the lease? What happens there? What’s that situation? How do we deal with that?

Well, the first thing is you have some good news — you have a next of kin. So they can make the arrangements for the deceased. And obviously you want to extend your condolences and treat the matter with utmost respect.

You’re going to want to advise the tenant’s son of their rights and responsibility to retrieve the property, and if they don’t comply with that 30-day period, then the landlord can dispose of the property as mentioned. Unfortunately that son will have to leave the property because he’s not a lawful tenant — there’s no right of inheritance.

In fact, the only people who can continue a lease if they’re not on it is the spouse of the deceased tenant, and a spouse is defined in the Residential Tenancies Act as a person who’s married to the tenant, or a person who is residing with the tenant in a conjugal relationship outside of marriage. That means they’ve lived with that person for at least one year, or they have a child together, or they’ve entered into a cohabitation agreement under the Family Law Act.

So if you’re a parent living with your children, and especially if they’re adult children, and you want to make sure that they will not be evicted — or they won’t actually be evicted, they’ll have to move out. It’s not an eviction process because the tenancy is deemed to be terminated after the 30-day period. But if you want to protect their rights to reside in the property…

Pets and Property Security

We always tell our landlords to make sure anybody over the age of 18 is on that lease agreement as well, just so we know how many bodies — let’s say the place were to burn down, right, we know how many people are in there — but also just for protection as well, to always know who’s living in the property at all times. Obviously we can’t restrict who moves in once they’re there, but we always want to try to add them to the lease as a practice that we do. So those are the two big ones I guess for tenant situations and death.

Is there any other situation maybe that I’m missing here that we should cover for somebody who goes on? Yeah, so some tenants do live with pets. You’re going to want to make sure that those pets are taken care of. Again, contacting next of kin will be the most beneficial thing.

Hopefully the situation is identified as quickly after the tenant has passed away, because in the situation you mentioned where somebody wasn’t discovered for three days and they had a pet — that’d be another very unfortunate situation. But again, if there’s no next of kin that can be contacted in a timely fashion, that landlord should contact the Humane Society to make sure that they’ll take care of the pet for safekeeping. As a landlord, does that mean then that I’m responsible for their pet if they passed?

Because you said I would be responsible for all the property and belongings inside, so I would have to make sure the cat or dog is looked after until we figure out what’s going on with all the property? Yep, you have to keep everything in safekeeping, so it’s not a problem to turn the pet over to the local Humane Society until someone with the proper authority to administer the estate is able to take care of the pet. Excellent — that’s something I wouldn’t have thought of, a pet, for sure.

And another thing to consider: when a tenant dies, you can take control over the property. You can change the locks again. This is important so that there’s no one you don’t want in the property messing around and getting in there, because again, you’re ultimately responsible.

And if property is removed, you can be held liable as a landlord.

Sibling Disputes & Property Access

Just to tie it back to what we’re talking about today — tenant Susan, who has kids that don’t live with her, let’s say two kids, they both had keys to the apartment. While that 30 days is going on, one of the kids comes in and takes something they believe belongs to them, where the other kid doesn’t agree — we would then be liable, correct? Yeah, that could be a multi-pronged suit, because they’re going to be dealing with estate assets. But ultimately, yeah, the landlord is responsible for safekeeping those assets until the appropriate person is able to take possession of them.

It’s interesting how some siblings can be when something like this happens. I had to deal with something years ago — there were three siblings, two daughters and a son, and they were arguing over a cake cutter, and they wouldn’t agree to list the house after their second parent had passed. They weren’t going to agree to do anything because they were all three equal, until they got this cake cutter — one sister was blaming the brother, back and forth, a big huge mess over a wedding cake cutter from their parents’ wedding. I was completely shocked that when your parent had passed away, you were arguing down to such a nitty-gritty thing.

But no, that’s interesting that we’re responsible for everything, including pets, and especially with siblings — change the locks right away if something like that’s happening. And you may want an added layer of protection: if you don’t know which sibling to hand the property over to, you may want to have a lawyer draft an indemnity agreement where you release the property to an individual and set out the factual background as to why you’re doing it, and that if there’s any claims for the value of the property, that person will indemnify you for the cost of them taking it. Something else to consider — one of the benefits of changing the lock and securing access is that there’s no eviction process, since the tenancy is deemed to be terminated.

Legal Protection Strategies

If someone is trying to squat in that property after the fact, then by changing the locks you’re able to control the premises, and that person is essentially trespassing. If there are any issues, hopefully the police will assist you — you can contact the police to attend the property to observe. Just be aware that the Landlord and Tenant Board is not necessarily going to step in to help you remove that person.

You’re going to have to deal with it as if you have possession of the property again, and somebody’s trespassing on it. Excellent — I think that was definitely jam-packed with information for everybody out there. Unless we’re missing something, let’s call it a wrap.

Let everybody know that this is the situation you’re going to have to deal with, sadly, if your tenant passes away. Yep, and like you mentioned, everybody’s situation is different, so depending on the scenario, you may want to get legal advice, just so that you’re protected because of the new responsibilities that arose. It’s an interesting topic — thanks so much for bringing me on to speak with you.

Thanks for sharing your wisdom and expertise and experience. And guys, if you need to get a hold of Gibrian, his contact information will be on the screen at some point as well. But just in case you don’t get to see it, you can always reach out to us — realestate@cresi.ca is the best email to get whatever information you’re after. As always, thanks so much for listening. I hope this got you some informed information that you need to know if you’re a landlord, just in case the situation ever arises. Thanks so much. Talk to you soon.

Bye for now.

Disclaimer & Closing Remarks

Please remember, while we are professionals, this podcast is for informational and entertainment purposes only. The advice shared may not apply to your unique situation. Always seek personalized advice from a qualified professional before making any investment decisions. Hey everybody, thanks so much for joining us this week.

I hope you enjoyed the episode. If you’re finding it informative and useful, make sure to like, subscribe, share with a friend so that we can keep getting the information out there to Ontario landlords, and keep on joining us. We’ll see you next time.